EXHIBIT 10.72
CE ELECTRIC UK FUNDING COMPANY
and
The Bank of New York, as Trustee,
Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
INDENTURE
Dated as of December 15, 1997
Debt Securities
TABLE OF CONTENTS 1
RECITALS OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................1
Act..................................................................2
Additional Amounts...................................................2
Affiliate............................................................2
Applicable Procedures................................................3
Auditors.............................................................3
Authenticating Agent.................................................3
Bearer Security......................................................3
Board of Directors...................................................3
Board Resolution.....................................................3
Book-Entry Depositary................................................3
Book-Entry Interest..................................................4
Business Day.........................................................4
Capital and Reserves.................................................4
Capitalized Lease Obligations........................................5
Cedel Bank...........................................................5
Commission...........................................................5
Companies Act........................................................6
Company..............................................................6
Company Request......................................................6
Consolidated Current Liabilities.....................................6
Consolidated Debt....................................................6
Consolidated EBITDA..................................................6
Consolidated Interest Expense........................................7
Consolidated Net Operating Income....................................8
Consolidated Net Tangible Assets.....................................8
- ------------------------
1 NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture
i
Corporate Trust Office...............................................8
Covenant Defeasance..................................................8
Currency or Interest Rate Agreement..................................9
DCR..................................................................9
Default..............................................................9
Defaulted Interest...................................................9
Defeasance...........................................................9
Deposit Agreement....................................................9
Director.............................................................9
Discharged...........................................................9
Distribution........................................................10
Dollar" or "$.......................................................10
DTC.................................................................10
Electricity Act ....................................................10
Euroclear Operator..................................................10
Event of Default....................................................10
Exchange Act........................................................10
Excluded Subsidiary.................................................10
Expiration Date.....................................................11
Global Security.....................................................11
Group...............................................................11
Group's Distribution Business.......................................11
Holder..............................................................12
Holding Period......................................................12
Incur...............................................................12
Indebtedness........................................................12
Indebtedness For Borrowed Money.....................................13
Indenture...........................................................13
Indirect Participant................................................13
Initial Principal Amount............................................13
interest............................................................13
Interest Coverage Ratio.............................................13
Interest Payment Date...............................................14
Latest Consolidated Balance Sheet...................................14
Letter of Representations...........................................14
Leverage Ratio......................................................14
Lien................................................................14
Maturity............................................................14
Measurement Date....................................................15
Moody's.............................................................15
Notice of Default...................................................15
Officers' Certificate...............................................15
Opinion of Counsel..................................................15
Optional Definitive Security Request................................15
Original Issue Discount Security....................................15
Outstanding.........................................................15
Participant.........................................................16
Paying Agent........................................................17
Permanent Global Security...........................................17
Person..............................................................17
PES Subsidiary......................................................17
Place of Payment....................................................18
Predecessor Security................................................18
Principal Amount....................................................18
Principal Paying Agent..............................................18
ii
Project Finance Indebtedness........................................18
QIB.................................................................19
Rated Securities....................................................20
Rating Agency.......................................................20
Redemption Date.....................................................20
Redemption Price....................................................20
Registered Security.................................................20
Regular Record Date.................................................20
Regulation S........................................................20
Regulation S Global Security........................................21
Regulation S Security...............................................21
Relevant Date.......................................................21
Responsible Officer.................................................21
Restricted Period...................................................21
Restricted Securities...............................................21
Rule 144............................................................21
Rule 144A...........................................................21
Rule 144A Global Security...........................................21
Rule 144A Information...............................................22
Rule 144A Security..................................................22
S&P.................................................................22
Securities..........................................................22
Securities Act......................................................22
Security Register...................................................22
Significant Subsidiary..............................................22
Special Record Date.................................................22
Stated Maturity.....................................................22
Subsidiary..........................................................23
Total Capital.......................................................23
Transfer Agent......................................................23
Trustee.............................................................23
Trust Indenture Act.................................................23
United Kingdom......................................................23
United Kingdom Taxes................................................23
United States" and "US".............................................23
US Government Obligation............................................24
Unrestricted Security"..............................................24
SECTION 102. Certificates and Opinions.....................................24
SECTION 103. Form of Documents Delivered to Trustee........................25
SECTION 104. Acts of Holders; Record Dates.................................26
SECTION 105. Notices, Etc., to Trustee and Company.........................30
SECTION 106. Notice to Holder; Waiver......................................31
SECTION 107. Effect of Headings and Table of Contents......................33
SECTION 108. Successors and Assigns........................................33
SECTION 109. Separability Clause...........................................33
iii
SECTION 110. Benefits of Indenture.........................................33
SECTION 111. Governing Law.................................................33
SECTION 112. Legal Holidays................................................33
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally...............................................34
SECTION 202. Form of Face of Security......................................36
SECTION 203. Form of Reverse of Security...................................45
SECTION 204. Form of Trustee's Certificate of Authentication...............58
SECTION 205. Form of Trustee's Certificate of Authentication
by an Authenticating Agent....................................58
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..........................60
SECTION 302. Denominations.................................................65
SECTION 303. Execution, Authentication, Delivery and Dating................65
SECTION 304. Transfer Agent and Paying Agent...............................67
SECTION 305. Temporary Securities..........................................68
SECTION 306. Registration, Registration of Transfer and Exchange...........69
SECTION 307. Bearer Securities.............................................71
SECTION 308. Restricted Securities.........................................72
(a) Transfer and Exchange.....................................72
(b) Removal of Transfer Restrictions..........................72
SECTION 309. Global Securities.............................................73
(a) Form and Legend...........................................74
(b) Transfer and Exchange.....................................74
(c) Beneficial Interests. ....................................76
(d) Special Provisions Regarding Transfer of Beneficial
Interests in a Regulation S Global Security...............76
(e) Special Provisions Regarding Transfer of Beneficial
Interests in a Rule 144A Global Security.................78
(f) Deposit Agreement........................................81
SECTION 310. Mutilated, Destroyed, Lost and Stolen Securities..............81
SECTION 311. Payment of Interest; Interest Rights Reserved.................82
SECTION 312. Persons Deemed Owners.........................................85
SECTION 313. Cancellation..................................................86
SECTION 314. Computation of Interest.......................................86
SECTION 315. Certification Form............................................87
SECTION 316. CUSIP and ISIN Numbers. .....................................100
iv
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401 Satisfaction and Discharge of Indenture......................101
SECTION 402. Defeasance, Discharge and Covenant Defeasance................103
(a) Defeasance and Discharge of a Series of Securities.......103
(b) Covenant Defeasance......................................104
(c) Conditions to Defeasance or Covenant Defeasance..........104
SECTION 403. Application of Trust Money...................................107
SECTION 404. Reinstatement...............................................108
ARTICLE V
REMEDIES
SECTION 501 Events of Default............................................109
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........111
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................113
SECTION 504. Trustee May File Proofs of Claim.............................114
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities................................................115
SECTION 506. Application of Money Collected...............................115
SECTION 507. Limitation on Suits..........................................117
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest..............................118
SECTION 509. Restoration of Rights and Remedies...........................118
SECTION 510. Rights and Remedies Cumulative...............................119
SECTION 511. Delay or Omission Not Waiver.................................119
SECTION 512. Control by Holders...........................................119
SECTION 513. Waiver of Past Defaults......................................120
SECTION 514. Undertaking for Costs........................................120
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................121
SECTION 602. Notice of Defaults...........................................123
SECTION 603. Certain Rights of Trustee....................................123
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......125
SECTION 605. May Hold Securities..............................125
SECTION 606. Money Held in Trust..........................................126
SECTION 607. Compensation and Reimbursement...............................126
SECTION 608. Disqualification; Conflicting Interests......................127
SECTION 609. Corporate Trustee Required; Eligibility......................127
SECTION 610. Resignation and Removal; Appointment of Successor Trustee....128
SECTION 611. Acceptance of Appointment by Successor.......................130
v
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business..................................................132
SECTION 613. Preferential Collecting of Claims Against Company............132
SECTION 614. Authenticating Agents........................................138
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders...................................................141
SECTION 702. Preservation of Information; Communications
to Holders...................................................143
SECTION 703. Reports by Trustee...........................................143
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........145
SECTION 802. Successor Corporation to be Substituted......................146
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indenture without Consent of Holders............147
SECTION 902. Supplemental Indentures with Consent of Holders..............149
SECTION 903. Execution of Supplemental Indentures.........................151
SECTION 904. Effect of Supplemental Indentures............................151
SECTION 905. Conformity with Trust Indenture Act.........................152
SECTION 906. Reference in Securities to Supplemental Indentures............152
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest..........152
SECTION 1002. Maintenance of Office or Agency..............................153
SECTION 1003. Money for Securities Payments to Be Held in Trust............154
SECTION 1004. Limitation on Liens..........................................156
SECTION 1005. Limitation on Distributions..................................161
SECTION 1006. Statement by Officers as to Default..........................162
SECTION 1007. Modification or Waiver of Certain Covenants..................163
SECTION 1008. Further Assurances...........................................163
SECTION 1009. Payment of Additional Amounts................................164
SECTION 1010. Copies Available to Holders..................................167
SECTION 1011. Reports by Company...........................................167
SECTION 1012. Resale of Restricted Securities by the Company...............168
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................168
SECTION 1102. Election to Redeem; Notice to Trustee........................169
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............169
SECTION 1104. Notice of Redemption.........................................170
SECTION 1105. Deposit of Redemption Price..................................171
SECTION 1106. Securities Payable on Redemption Date........................171
SECTION 1107. Securities Redeemed in Part..................................172
SECTION 1108. Optional Redemption in the Event of Change in
United Kingdom Tax Treatment.................................173
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................174
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........175
SECTION 1203. Redemption of Securities for Sinking Fund....................175
ARTICLE XIII
MEETTINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes of Meeting..........................................177
SECTION 1302. Place of Meetings............................................178
SECTION 1303. Voting at Meetings...........................................178
SECTION 1304. Voting Rights, Conducts and Adjournment......................179
SECTION 1305. Revocation of Consent by Holders.............................180
ARTICLE XIV
MISCELLANEOUS
SECTION 1401. Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process....................................180
SECTION 1402. Counterparts.................................................183
vii
INDENTURE, dated as of December 15, 1997, among CE ELECTRIC UK FUNDING
COMPANY, an unlimited company duly incorporated and existing under the laws of
England and Wales (the "Company"), having its principal office at c/o Northern
Electric plc, Carliol House, Market Street, Newcastle upon Tyne, NE1 6NE, THE
BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"),
Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and
BANQUE INTERNATIONALE A LUXEMBOURG S.A., a societe anonyme organized and
existing under the laws of the Grand Duchy of Luxembourg, as Paying Agent and
Transfer Agent.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of certain of its
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the respective meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein to the extent applicable;
(3) reference to principal, interest, discount or premium in respect of the
Securities shall be deemed also to refer to any Additional Amounts
which may be payable as set forth in this Indenture or in the
Securities;
(4) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United Kingdom and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles", with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United Kingdom at the date of such computation; and
1
(5) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1009.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling", and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means the rules and procedures of DTC and, as
applicable, Euroclear and Cedel, in each case pertaining to beneficial interests
in the Book-Entry Interest with respect to a Global Security.
"Auditors" means the auditors for the time being of the Company or, in
the event of their being unable or unwilling to carry out any action requested
of them pursuant to the terms of the Indenture, such other firm of
internationally recognized accountants as the Company may select for the
purpose.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Securities on behalf of the Trustee pursuant to Section 614.
"Bearer Security" means any Security that is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution of the Company
certified by a Director, by the Secretary or by other authorized designee of the
Board of Directors to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification.
"Book-Entry Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Book-Entry Depositary by the Company
pursuant to Section 301, and, if so provided pursuant to Section 301 with
respect to the Securities of a series, any successor to such Person. If at any
time there is more than one such Person, "Book-Entry Depositary" shall mean,
with respect to any series of Securities, the qualifying entity which has been
appointed with respect to the Securities of that series.
2
"Book-Entry Interest" means one or more certificateless depositary
interests issued by the Book-Entry Depositary to DTC (registered in the name of
DTC or its nominee) representing the right to receive 100% of the principal,
premium (if any), and interest with respect to a Global Security of any series
of Securities, unless and until definitive Registered Notes are issued in
respect of such series of Securities.
"Business Day", when used with respect to the Place of Payment of the
Securities of any series, means each day which is not a Saturday, a Sunday or a
day on which banking institutions in any Place of Payment for the Securities of
that series are authorized or obligated by law to remain closed.
"Capital and Reserves" means the aggregate of:
(i) the amount (including any share premium) of the share capital
of the Company for the time being issued and paid up or
credited as paid up; and
(ii) the amounts standing to the credit of all capital and revenue
reserve accounts and the consolidated profit and loss of the
Group;
but adjusted to the extent that the following items have not already been added,
deducted or excluded in arriving at the figures referred to in (i) or (ii)
above;
(iii) by adding the outstanding amount of any subordinated debt;
(iv) by deducting the amounts standing to the debit of all capital
and revenue reserve accounts and the consolidated profit and
loss account of the Group;
(v) by deducting any amounts shown in respect of interests of
non-Group members in Group subsidiaries;
(vi) by adding the amount of goodwill arising upon and in respect
of the acquisition of the preference shares and ordinary
shares of Northern Electric plc;
(vii) by deducting the amount of any distribution declared or made
by the Company or any of its subsidiaries (other than to
another member of the Group) out of profits included within
reserves to the extent that these reserves have not already
been reduced on account thereof; and
(viii) by adding the amount shown in respect of deferred taxation;
all as shown in the Latest Consolidated Balance Sheet.
3
"Capitalized Lease Obligations" means all lease obligations of the
Company and its Subsidiaries which, under UK GAAP, are or will be required to be
capitalized, in each case taken at the amount thereof accounted for as
indebtedness in conformity with such principles.
"Cedel Bank" means Cedel Bank, societe anonyme, or its successors.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Companies Act" is defined to mean the UK Companies Act 1985 as amended
or re-enacted from time to time and all subordinate legislation made pursuant
thereto.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any Director of the Company and by any
other Director of the Company or any officer or other person duly authorized by
the Board of Directors, and delivered to the Trustee.
"Consolidated Current Liabilities" is defined to mean the consolidated
current liabilities of the Company and its Subsidiaries, but excluding the
current portion of long term Indebtedness which would otherwise be included
therein, as determined on a consolidated basis in accordance with UK GAAP.
"Consolidated Debt" is defined to mean, at any time, the sum of the
aggregate outstanding principal amount of all Indebtedness for Borrowed Money
(including, without limitation, the principal component of Capitalized Lease
Obligations, but excluding Currency or Interest Rate Agreements and all
Consolidated Current Liabilities and Project Finance Indebtedness of the Company
and its Subsidiaries) less cash and cash equivalents, as determined on a
consolidated basis in conformity with UK GAAP.
"Consolidated EBITDA" is defined to mean, for any period, the sum of
the amounts for such period of the Company's (i) Consolidated Net Operating
Income, (ii) Consolidated Interest Expense, (iii) income taxes and deferred
taxes (other than income taxes and deferred taxes (either positive or negative)
attributable to extraordinary and non-recurring gains or losses or sales of
assets), (iv) depreciation expense, (v) amortization expense and (vi) all other
non-cash items reducing Consolidated Net Operating Income, less all non-cash
items increasing Consolidated Net Operating Income, all as determined on a
consolidated basis in conformity with UK GAAP; provided that, to the extent that
the Company has any Subsidiary that is not a wholly-owned Subsidiary,
Consolidated EBITDA shall be reduced by an amount equal to the Consolidated Net
Operating Income of such Subsidiary multiplied by the quotient of (A) the number
of shares of outstanding common stock of such Subsidiary not owned on the last
day of such period by the Company or any Subsidiary of the Company, divided by
(B) the total number of shares of outstanding common stock of such Subsidiary on
the last day of such period.
4
"Consolidated Interest Expense" is defined to mean, for any period, the
aggregate amount of interest in respect of Indebtedness for Borrowed Money
(including amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; and all commissions, discounts
and other fees and charges owed with respect to bankers' acceptance financing)
and the net costs associated with Interest Rate Agreements and all but the
principal component of rentals in respect of Capitalized Lease Obligations,
paid, accrued or scheduled to be paid or to be accrued by the Company and each
of its Subsidiaries during such period, excluding, however, any amount of such
interest of any Subsidiary of the Company if the net operating income (or loss)
of such Subsidiary is excluded from the calculation of Consolidated Net
Operating Income for such Subsidiary pursuant to clause (ii) of the definition
thereof (but only in the same proportion as the net operating income (or loss)
of such Subsidiary is excluded), less consolidated interest income, all as
determined on a consolidated basis in conformity with UK GAAP; provided that, to
the extent that the Company has any Subsidiary that is not a wholly-owned
Subsidiary, Consolidated Interest Expense shall be reduced by an amount equal to
such interest expense of such Subsidiary multiplied by the quotient of (A) the
number of shares of outstanding common stock of such Subsidiary not owned on the
last day of such period by the Company or any Subsidiary of the Company divided
by (B) the total number of shares of outstanding common stock of such Subsidiary
on the last day of such period.
"Consolidated Net Operating Income" is defined to mean, for any period,
the aggregate of the net operating income (or loss) of the Company and its
Subsidiaries for such period, as determined on a consolidated basis in
conformity with UK GAAP; provided that the following items shall be excluded any
calculation of Consolidated Net Operating Income (without duplication): (i) the
net operating income (or loss) of any Person (other than a Subsidiary) in which
any other person has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or another
Subsidiary of the Company during such period; (ii) the net operating income (or
loss) of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such net operating
income is not at the time permitted by the operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation or license; and (iii) all extraordinary gains and
extraordinary losses.
"Consolidated Net Tangible Assets" shall mean the total of all assets
(including revaluations thereof as a result of commercial appraisals, price
level restatement or otherwise) appearing on a consolidated balance sheet of the
Company, net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the Consolidated Current Liabilities of the
Company appearing on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be administered, which at the date hereof is 101 Barclay Street,
Floor 21 West, New York, New York, 10286, Attention: Corporate Trust
Administration.
5
"corporation" includes corporations, associations, companies and
business trusts.
"Covenant Defeasance" has the meaning specified in Section 402(b).
"Currency or Interest Rate Agreement" is defined to mean an agreement
or transaction involving any currency or interest rate swap, cap or collar
arrangement, forward exchange transaction, option, warrant, forward rate
agreement, futures contract or other derivative instrument of any kind for the
hedging or management of foreign exchange or interest rate risks.
"DCR" means Duff & Phelps Credit Rating Co.
"Default" means, for purposes of Section 601 hereof, an "Event of
Default" as specified in Section 501 hereof. For purposes of Section 310(b) of
the Trust Indenture Act (if applicable to the Securities of any series),
"default" shall mean an "Event of Default" as specified in Section 501 hereof,
but exclusive of any period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 311.
"Defeasance" has the meaning specified in Section 402(a).
"Deposit Agreement" means the deposit agreement between the Company and
the Book-Entry Depositary.
"Director" means any member of the Board of Directors.
"Discharged" means, with respect to the Securities of any series, the
discharge of the entire indebtedness represented by, and obligations of the
Company under, the Securities of such series and the satisfaction of all the
obligations of the Company under this Indenture relating to the Securities of
such series, except (A) the rights of Holders of the Securities of such series
to receive, from the trust fund described in Section 403 hereof, payment of the
principal of and interest and premium, if any, on the Securities of such series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment and (C) the rights, powers, trusts, duties,
protections and immunities of the Trustee under this Indenture.
"Distribution" means any dividend, distribution or payment (including
by way of redemption, repurchase, retirement, return or repayment) in respect of
shares of capital stock of the Company.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debt.
"DTC" means The Depository Trust Company or its successors, or any
successor clearing agency which is registered as such under the Exchange Act and
approved by the Company.
"Electricity Act" means the Electricity Act of 1989, as amended or
re-enacted from time to time and all subordinate legislation made pursuant
thereto.
6
"Euroclear Operator" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the US Securities Exchange Act of 1934, as
amended.
"Excluded Subsidiary" means any Subsidiary of the Company (other than a
PES Subsidiary):
(i) in respect of which neither the Company nor any Subsidiary of
the Company (other than another Excluded Subsidiary) has
undertaken any legal obligation to give any guarantee for the
benefit of the holders of any Indebtedness for Borrowed Money
(other than to another member of the Group) other than in
respect of any statutory obligation and the Subsidiaries of
which are all Excluded Subsidiaries; and
(ii) which has been designated as such by the Company by written
notice to the Trustee; provided that the Company may give
written notice to the Trustee at any time that any Excluded
Subsidiary is no longer an Excluded Subsidiary whereupon it
shall cease to be an Excluded Subsidiary.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Registered Security or a Bearer Security
which evidences all or part of a series of Securities and which is issued to the
Book-Entry Depositary for such series or its nominee. Global Securities may be
more specifically referred to herein as "Global Registered Securities" or
"Global Bearer Securities, " as the case may be.
"Group" means the Company and its subsidiaries and "member of the
Group" shall be construed accordingly.
"Group's Distribution Business" means the business carried on by
Northern Electric plc or any other member of the Group from time to time
pursuant to the terms of the PES Licence comprising, or ancillary to, the
distribution (whether for its own account or that of third parties) of
electricity through the Group's Distribution System (including any business in
providing connections to the Group's Distribution System) but shall not include
any activities exclusively forming part of the Generation Business, Second-Tier
Supply Business or Supply Business (as such terms are defined in the PES
Licence) carried on or to be carried on by any member of the Group.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Global Bearer Security, the bearer thereof, including the Book-Entry
Depositary, acting in accordance with the Deposit Agreement, as sole holder
thereof.
7
"Holding Period" has the meaning specified in Section 201.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume or guarantee such Indebtedness.
"Indebtedness" means, with respect to the Company or any of any its
Subsidiaries at any date of determination (without duplication), (i) all
Indebtedness for Borrowed Money, (ii) all obligations in respect of letters of
credit or other similar instruments (including reimbursement obligations with
respect thereto), (iii) all obligations to pay the deferred and unpaid purchase
price of property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except trade payables, (iv) all
Capitalized Lease Obligations, (v) all indebtedness of other persons secured by
a mortgage, charge, lien, pledge or other security interest on any asset of the
Company or any of its Subsidiaries, whether or not such indebtedness is assumed;
provided that the amount of such Indebtedness shall be the lesser of (A) the
fair market value of such asset at such date of determination and (B) the amount
of the secured indebtedness, (vi) all indebtedness of other persons of the types
specified in the preceding clauses (i) through (v), to the extent such
indebtedness is guaranteed by the Company or any of its Subsidiaries, and (vii)
to the extent not otherwise included in this definition, obligations under
Currency Agreements and Interest Rate Agreements. The amount of Indebtedness at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, upon the occurrence of the contingency
giving rise to the obligation, the maximum liability of any contingent
obligations of the types specified in the preceding clauses (i) through (vii) at
such date; provided that the amount outstanding at any time of any Indebtedness
issued with original issue discount is the face amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with UK GAAP.
"Indebtedness For Borrowed Money" means any indebtedness (whether being
principal, premium, interest or other amounts) for (i) money borrowed, (ii)
payment obligations under or in respect of any acceptance or acceptance credit,
or (iii) any notes, bonds, debentures, debenture stock, loan stock or other debt
securities offered, issued or distributed whether by way of public offer,
private placing, acquisition consideration or otherwise and whether issued for
cash or in whole or in part for a consideration other than cash.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Indirect Participant" means a Person that holds interests in the
Book-Entry Interest through a Person that has an account with DTC.
"Initial Principal Amount" has the meaning specified in Section 202.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Coverage Ratio" means, with respect to the Company on any
Measurement Date, the ratio of (i) the aggregate amount of Consolidated EBITDA
of the Company for the four fiscal quarters for which financial information in
respect thereof is available immediately prior to such Measurement Date to (ii)
the aggregate Consolidated Interest Expense during such four fiscal quarters.
8
"Interest Payment Date", when used with respect to any installment or
interest in respect of a Security, means the Stated Maturity of such installment
of interest.
"Latest Consolidated Balance Sheet" means, at any date, the then latest
consolidated balance sheet forming part of the group accounts of the Company
prepared for the purpose of the Companies Act, which have been audited and have
been reported on by the Auditors as the main accounts of the Company and
prepared in accordance with the historical cost convention modified, if
applicable, by the revaluation of land and buildings or any other basis from
time to time permitted by applicable law, but adjusted as may be necessary in
respect of any variation in the liabilities, paid up share capital or share
premium account of the Company since the date of that balance sheet and further
adjusted as may be necessary to reflect any change since the date of that
balance sheet in the Subsidiaries of the Company and/or as the Company may
consider appropriate.
"Letter of Representations" means, with respect to the Securities of
any series, the written representations from the Company and the Book-Entry
Depository to DTC with respect to any Global Securities of that series.
"Leverage Ratio" means the ratio of Consolidated Debt to Total Capital,
calculated on the basis of the Latest Consolidated Balance Sheet, adjusted by
the Company to reflect the financial condition of the Company and its
Subsidiaries as of a date not more than 60 days prior to a Measurement Date.
"Lien" means any mortgage, lien, pledge, security interest or other
encumbrance; provided, however, that the term "Lien" shall not mean any
easements, rights-of-way, restrictions and other similar encumbrances and
encumbrances consisting of zoning restrictions, leases, subleases, restrictions
on the use of property or defects in the title thereto.
"Maturity", when used with respect to any Security or any installment
of principal thereof, means the date on which the principal of such Security or
installment of principal, as applicable, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Measurement Date" means the record date for any Distribution.
"Moody's" means Moody's Investors Service, Inc. and any Subsidiary or
successor thereof.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
9
"Officers' Certificate" means a certificate signed by any Director of
the Company and by any other Director of the Company or any officer or other
person duly authorized by the Board of Directors, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who, unless
otherwise specified herein or required by the Trust Indenture Act, may be an
employee of or regular counsel for the Company, or may be other counsel
reasonably acceptable to the Trustee.
"Optional Definitive Security Request" has the meaning specified in
Section 309(b)(ii).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to the Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or US Governmental Obligations in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 310 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, (b) if the
principal amount of a Security payable at Maturity is to be determined by
reference to an index or indices, the principal amount of such Security that
shall be deemed to be Outstanding shall be the face amount thereof, (c) if, as
of such date, the principal amount payable at the Stated Maturity of a Security
is not determinable, the principal amount of such Security which shall be deemed
to be Outstanding shall be the amount as established as contemplated by Section
301, (d) the principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
10
the US dollar equivalent, determined as of such date in the manner established
as contemplated by Section 301, of the principal amount of such Security (or, in
the case of a Security described in Clause (a) or (b) above, of the amount
determined as provided in such Clause), and (e) Securities owned by the Company
or any other obligor upon the Securities or any Subsidiary of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned as described in (e) above
which have been pledged in good faith may be regarded as Outstanding if the
pledgee certifies to the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Subsidiary of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means Banque Internationale a Luxembourg S.A. and any
other Person authorized by the Company to pay the principal of (and premium, if
any) or interest on any Securities on behalf of the Company hereunder,
including, without limitation, the Principal Paying Agent.
"Permanent Global Security" means a Global Security that is, at the
time of the initial issuance of the related series of Securities, issued in
permanent form.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PES Subsidiary" means any Subsidiary of the Company which carries on
all or any part of the Group's Distribution Business pursuant to a public
electricity supply licence granted under the Electricity Act.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in or as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purpose of this definition, any Security
authenticated and delivered under Section 310 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen security.
"Principal Amount" has the meaning specified in Section 202.
"Principal Paying Agent" means The Bank of New York until a successor
Principal Paying Agent shall have become such pursuant to the applicable
provisions of this Indenture and, thereafter, "Principal Paying Agent" shall
mean such successor Principal Paying Agent.
11
"Project Finance Indebtedness" means any Indebtedness to finance or
refinance the ownership, acquisition, development, design, engineering,
procurement, construction, servicing, management and/or operation of any project
or asset:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which the person or persons to whom any such
Indebtedness is or may be owed by the relevant borrower
(whether or not a member of the Group) has or have no recourse
whatsoever to any member of the Group (other than an Excluded
Subsidiary) for the repayment thereof other than:
(a) recourse to such member of the Group for amounts
limited to the cash flow or net cash flow (other than
historic cash flow or historic net cash flow) from,
or ownership interests or other investments in, such
project or asset; and/or
(b) recourse to such member of the Group for the purpose
only of enabling amounts to be claimed in respect of
such Indebtedness in an enforcement of any
encumbrance given by such member of the Group over
such project or asset or the income, cash flow or
other proceeds deriving therefrom (or given by any
shareholder or the like or other investor in the
borrower or in the owner of such project or asset
over its shares or the like in the capital of, or
other investment in, the borrower or in the owner of
such project or asset) to secure such Indebtedness,
provided that the extent of such recourse to such
member of the Group is limited solely to the amount
of any recoveries made on any such enforcement;
and/or
(c) recourse to such borrower generally, or directly or
indirectly to a member of the Group, under any form
of assurance, undertaking or support, which recourse
is limited to a claim for damages (other than
liquidated damages and damages required to be
calculated in a specified way) for breach of an
obligation (not being a payment obligation or an
obligation to procure payment by another or an
indemnity in respect thereof or any obligation to
comply or to procure compliance by another with any
financial ratios or other tests of financial
condition) by the person against which such recourse
is available.
"QIB" means a Qualified Institutional Buyer, as defined in Rule 144A.
"Rated Securities" means the Securities, if at any time and for so long
as they shall have a rating from a Rating Agency, and otherwise any other
unsecured and unsubordinated debt of the Company (or of any Subsidiary of the
Company and which is guaranteed on an unsecured and unsubordinated basis by the
Company) having an initial maturity of five years or more which is rated by a
Rating Agency.
"Rating Agency" means (i) S&P and (ii) Moody's, any of their respective
Subsidiaries or successors, or, in any case, if such person ceases to rate any
series of Securities for reasons outside the control of the Company, any other
12
"nationally recognized statistical rating organization" (within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as a
replacement Rating Agency.
"Redemption Date" means any date on which the Company redeems all or
any portion of any Security in accordance with the terms of this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Registered Security" means any Security that is payable to a
registered owner or registered assigns thereof as registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Regulation S" means Regulation S promulgated under the Securities Act,
or any successor provision thereto and as may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Security" means Securities of any series offered and sold
in their initial distribution to non-US Persons in offshore transactions in
reliance on Regulation S, until such time as the Restricted Period shall have
terminated.
"Relevant Date" means, for any payment made with respect to the
Securities of any series, the later of (i) the date on which such payment first
becomes due and (ii) if the full amount payable has not been received in The
City of New York by the Book-Entry Depositary or the Trustee on or prior to such
due date, the date on which, the full amount having been so received, notice to
that effect shall have been given to the Holders in accordance with this
Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office, including any secretary, vice
president, managing director, assistant vice president, assistant secretary (if
any), assistant treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers; and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Period" has the meaning specified in Section 201.
"Restricted Securities" means Securities required to bear a legend
containing Securities Act transfer restrictions, in substantially the form
specified in Section 202.
"Rule 144" means Rule 144 promulgated under the Securities Act, or any
successor provision thereto and as may be amended from time to time.
13
"Rule 144A Global Security" has the meaning specified in Section 201.
"Rule 144A Information" has the meaning specified in Section 704.
"Rule 144A Security" means Securities of any series offered and sold in
their initial resale distribution to QIBs in reliance on Rule 144A, until such
time as the Holding Period shall have terminated.
"S&P" means Standard & Poor's Rating Group and any Subsidiary or
successor thereof.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the US Securities Act of 1933, as amended.
"Security Register" and "Security Exchange Agent/Registrar" have the
respective meanings specified in Section 306.
"Significant Subsidiary" means, at any particular time, any Subsidiary
of the Company whose gross assets or gross revenues (having regard to the
Company's direct and/or indirect beneficial interest in the shares, or the like,
of that subsidiary) represent at least 25% of the consolidated gross assets or,
as the case may be, consolidated gross revenues of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 311.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" is defined to mean a Subsidiary or Subsidiary undertaking
within the meaning of the Companies Act.
"Total Capital" means the sum of total liabilities plus Capital and
Reserves of the Company and its Subsidiaries, as determined on a consolidated
basis in accordance with UK GAAP.
"Transfer Agent" means any Person authorized by the Company to
effectuate the exchange or transfer of any Security on behalf of the Company
hereunder.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
14
"Trust Indenture Act" means the US Trust Indenture Act of 1939, as
amended.
"UK GAAP" means generally accepted accounting principles in the United
Kingdom as in effect from time to time, consistently applied.
"United Kingdom" means the United Kingdom of Great Britain and Northern
Ireland, its territories, its possessions and other areas subject to its
jurisdiction.
"United Kingdom Taxes" has the meaning specified in Section 1009.
"United States" and "US" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"US Government Obligation" means any (a) security which is (i) a direct
obligation of the United States for the payment of which the full faith and
credit of the United States is pledged or (ii) an obligation of a person
controlled or supervised by and acting as an agency of instrumentality of the
United States the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in the case of clause (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (b)
depositary receipt issued by a bank (as defined in the Securities Act) as
custodian with respect to any security specified in clause (a) above and held by
such bank for the account of the holder of such depositary receipt or with
respect to any specific payment of principal of or interest on any such security
held by any such bank, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the US Government Obligation or the specific payment of interest on or principal
of the US Government Obligation evidenced by such depository receipt.
"Unrestricted Security" has the meaning specified in Section 201.
102. Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee (i) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with; provided, that if
the Security is to be issued in a registered public offering in the United
States, each such Officer's Certificate and Opinion of Counsel shall comply with
the requirements of the Trust Indenture Act as if the provisions thereof applied
to this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
15
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or instrument required to be given or executed by a Director which
is not a natural person may be given or executed on behalf of such Director by
any duly authorized designee of such Director.
Any certificate or opinion of an officer or Director of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer or Director knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any certificate or opinion of counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers or Director or Directors of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
104. Acts of Holders; Record Dates
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by the Holders of any series of Securities may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by each such
Holder in Person or by an agent duly appointed in writing, and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
16
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, in each case pursuant to Section 301, (i) a Holder of any Security,
including a Book-Entry Depositary that is a Holder of a Global Security, may
make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by the Holder of
any such Security, (ii) a Holder of any such Security, including a Book-Entry
Depositary that is a Holder of a Global Security, entitled hereunder to take any
action hereunder with regard to such Security may do so with regard to all or
any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of the principal amount of such Security; and (iii) a
Book-Entry Depositary that is a Holder of a Global Security may provide its
proxy or proxies to the beneficial owners of interests in a Book-Entry Interest
in any such Global Security through such Book-Entry Depositary's standing
instructions and customary practices.
(b) The fact and date of the execution by any Person of any
such instrument, writing or proxy may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument, writing or proxy acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument, writing or proxy, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefore or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The principal or face amount and serial numbers of Bearer
Securities of any series held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a certificate
executed by the Book-Entry Depositary for such Bearer Securities.
(f) The Company may, in its discretion, by Board Resolution,
set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request,
demand, authorization, direction, consent, waiver or Act provided or permitted
by this Indenture to be given, made or taken by Holders of Securities of such
series; provided that the Company shall have no obligation to set a record date;
and provided further that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
17
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to any applicable
Expiration Date (as defined below) by Holders of the requisite principal amount
of Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect); provided, however,
that no new record date may be established with the purpose or effect of
rendering, and no other provision of this paragraph shall be construed to
render, ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series; provided
that if the Trustee does not set any record date within ten days after first
receiving any such notice, declaration, rescission and annulment, request or
direction, as the case may be, then the record date shall be the close of
business on the date on which the Trustee first receives any such notice,
declaration, rescission and annulment, request or direction, as the case may be.
If any record date is set by the Trustee pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to any applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect);
provided, however, that no new record date may be established with the purpose
or effect of rendering, and no other provision of this paragraph shall be
construed to render, ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken based on such record date previously set. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
18
With respect to any record date set pursuant to this Section 104(f),
the party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other parties hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 106, on or prior to the earlier of (i) the existing
Expiration Date and (ii) the proposed new Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 90th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
106. Notice to Holder; Waiver
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, (i) in the case of a Holder of Registered Securities, at his
address as it appears in the Security Register, and (ii) in the case of a Holder
of Global Bearer Securities, at the address provided in or pursuant to the
relevant Deposit Agreement of the relevant Book-Entry Depositary or Depositaries
therefor, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
If, by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to give such notice by mail, then
such notification as shall be made at the direction of the Company in a manner
reasonably calculated, to the extent practicable under the circumstances, to
provide prompt notice shall constitute a sufficient notification for every
purpose hereunder.
19
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event and the rules
of any securities exchange on which such Bearer Securities are listed so
require, such notice shall be sufficiently given to Holders of such Bearer
Securities if twice published in such newspaper or newspapers as may be
specified in such Securities, in each case on a Business Day, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. Any such notice by
publication shall be deemed to have been given on the date of the first such
publication. In addition, notice to the Holder of any Global Bearer Security
shall be given by mail in the manner provided above.
If by reason of any cause it shall be impracticable to publish any
notice to Holders of Bearer Securities as provided above, then such notification
to Holders of Bearer Securities as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder, which publication or other notice shall, so far as may be reasonably
possible, approximate the terms and conditions of the publication in lieu of
which it is given. Neither the failure to give notice by publication to Holders
of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication (unless otherwise specified with respect to Securities of
any series pursuant to Section 301).
So long as the Securities of a series are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require,
notices to Holders of Securities of such series will be published in a leading
newspaper having general circulation in Luxembourg (which is expected to be the
Luxembourger Wort).
Any notice required or permitted hereunder may be waived in writing by
the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
107. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
108. Successors and Assigns
20
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
109. Separability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
110. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
111. GOVERNING LAW
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
112. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security established as contemplated by Section
301 hereof which specifically states that such provision shall apply in lieu of
this Section)) payment of interest, if any, or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
21
ARTICLE II
SECURITY FORMS
201. Forms Generally
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, a Board
Resolution or one or more indentures supplemental hereto, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon (i) as may be required by law or to comply with the
rules of (a) any securities exchange, (b) DTC or any other clearing agency
registered as such under the Exchange Act or (c) Euroclear or Cedel; or (ii) as
may, consistently herewith, be determined by the Director or Directors executing
such Securities, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
an authorized Director or officer of the Company and delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities.
The Trustees certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the Director or Directors executing such Securities, as evidenced by their
execution thereof.
Except as otherwise provided pursuant to Section 301, Securities of any
series offered and sold in their initial resale distribution to QIBs in reliance
on Rule 144A shall initially be issued in the form of one or more Global
Securities of such series in bearer form, substantially in the form set forth in
this Article, with such applicable legends as are provided for in Section 202.
Such Global Securities shall be duly executed by the Company and authenticated
by the Trustee as hereinafter provided, and deposited with the Book-Entry
Depositary, which will hold such Global Securities for the benefit of DTC. Until
such time as the Holding Period (as defined below) shall have terminated, each
such Security shall be referred to as a "Rule 144A Global Security. " The
aggregate principal amount of any Rule 144A Global Security may be adjusted by
endorsements to Schedule A on the reverse thereof in any situation where
adjustment is permitted or required by this Indenture. Unless the Company
determines otherwise in accordance with applicable law, the legend setting forth
transfer restrictions shall be removed from a Rule 144A Security in accordance
with the procedures set forth in Section 308(b) after such time as the
applicable Holding Period shall have terminated, and each such Security shall
thereafter be held as an "Unrestricted Security." As used herein, the term
"Holding Period," with respect to Rule 144A Securities of any series, means the
period referred to in Rule 144(k) or any successor provision thereto and as may
be amended or revised from time to time, beginning from the later of (i) the
original issue date of such Securities or (ii) the last date on which the
Company or any affiliate of the Company was the beneficial owner of such
Securities (or any predecessor thereof).
22
Except as otherwise provided pursuant to Section 301, Securities of any
series offered and sold in their initial distribution to non-US Persons in
offshore transactions in reliance on Regulation S shall initially be issued in
the form of one or more Global Securities of such series in bearer form,
substantially in the form set forth in this Article, with such applicable
legends as are provided for in Section 202. Such Global Securities shall be duly
executed by the Company and authenticated by the Trustee as herein provided, and
deposited with the Book-Entry Depositary, which will hold such Global Securities
for the benefit of DTC, for credit initially only to such accounts at Euroclear
or Cedel as DTC's Participants may direct. Until such time as the Restricted
Period (as defined below) shall have terminated, each such Global Security shall
be referred to as a "Regulation S Global Security." The aggregate principal
amount of any Regulation S Global Security may be adjusted by endorsements to
Schedule A on the reverse thereof in any situation where adjustment is permitted
or required by this Indenture. Unless the Company determines otherwise in
accordance with applicable law, the legend setting forth transfer restrictions
shall be removed from a Regulation S Security in accordance with the procedures
set forth in Section 308(b) after such time as the applicable Restricted Period
shall have terminated, and each such Security shall thereafter be held as an
"Unrestricted Security". As used herein, the term "Restricted Period," with
respect to Regulation S Securities of any series, means the period of 40
consecutive days beginning on and including the later of (i) the date on which
interests in such Securities are offered to Persons other than distributors (as
defined in Regulation S) and (ii) the original issue date of such Securities.
Except as otherwise provided pursuant to Section 301, no Regulation S Global
Security shall be issued except as provided in this paragraph to evidence
Securities offered and sold in their initial distribution in reliance on
Regulation S.
202. Form of Face of Security
[If the Security is to be a Global Security, insert--THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS [HELD BY] [REGISTERED IN THE NAME OF] A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF
A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES [HELD BY]
[REGISTERED IN THE NAME OF] A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE BOOK-ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A
NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER
NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
BOOK-ENTRY DEPOSITARY) MAY BE [MADE] [REGISTERED] EXCEPT IN LIMITED
CIRCUMSTANCES.
23
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
[REGISTRATION OF TRANSFER,] EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS
ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE [BEARER] [REGISTERED OWNER] HEREOF, THE
BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.]
[If the Security is to be a Restricted Security, insert the applicable
language-- [THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE 144A
UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN
ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE:] [THIS SECURITY HAS
BEEN ISSUED IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT AND SHALL BEAR
THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS
OF THE INDENTURE:]]
[If the security is to be a Restricted Security, insert--
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR
THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
CE ELECTRIC UK FUNDING COMPANY
[Title of the Security]
No. __________ $_________
CUSIP No._________
[ISIN No. ________]
[Common Code:_________]
CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under
the laws of England and Wales (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [the bearer upon surrender hereof]
[name of registered owner or its registered assigns] [if the Security is a
Global Security, insert-- the Initial Principal Amount specified on Schedule A
hereto (such Initial Principal Amount, as it may from time to time be adjusted
by endorsement on Schedule A hereto, is hereinafter referred to as the
"Principal Amount")] [if this Security is NOT a Global Security, insert-- the
principal sum of ________ Dollars (the "Principal Amount")] on _______ [if the
Security is to bear interest prior to Maturity, insert--, and to pay interest
thereon from or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on and ______ in each year,
commencing, at the rate of ___% per annum, until the Principal Amount hereof is
paid or made available for payment [if applicable, insert--; provided that any
Principal Amount and premium, and any such installment of interest, which is
24
overdue shall bear interest at the rate of ___% per annum (or, if lower, the
maximum rate legally enforceable), from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
[the bearer on such Interest Payment Date] [the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
__________ or _________ (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date]. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to [the
bearer on such Interest Payment Date] [the Person in whose name this Security
(or one or more Predecessor Securities) is registered on such Regular Record
Date] and may be paid to [the bearer at the time of payment of such Defaulted
Interest] [the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date], or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of [yield to maturity] % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. [Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of [yield to maturity] % per
annum (or, if lower, the maximum rate legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
[If this Security is not a Global Bearer Security, insert-- Payment of
the principal of (and premium, if any) and interest, if any, on this Security
will be made at any place of payment or at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts [If this Security is
not a Global Security, insert-- ; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register].
[If this Security is a Global Security, insert applicable manner of payment.]]
25
[If the Security is a Global Bearer Security, insert-- Payment of the
principal of (and premium, if any) and interest on this Security shall be
payable only through a Paying Agent located outside the United States and the
United Kingdom in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts;
provided, that such Paying Agent shall be permitted to make use of a US-based
bank account for such purpose. [Insert applicable manner of payment.]]
All payments of principal and interest (including payments of discount
and premium, if any) in respect of this Security shall be made free and clear
of, and without withholding or deduction for or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within the United Kingdom
or by or within any political subdivision thereof or any authority therein or
thereof having power to tax ("United Kingdom Taxes"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction
the Company shall pay to the relevant Holders such additional amounts
("Additional Amounts") as will result in the payment to such Holders of the
amount that would otherwise have been receivable by such Holders in the absence
of such withholding or deduction, except that no such Additional Amounts shall
be payable:
(a) to, or to a Person on behalf of, a Holder who is
liable for such United Kingdom Taxes in respect of
this Security by reason of such Holder (or a
fiduciary, settlor, beneficiary, member or
shareholder or possessor of a power over such Holder,
if such Holder is an estate, trust, partnership or
corporation) having some connection with the United
Kingdom (including but not limited to being a citizen
or resident or national or domiciliary of, or
carrying on a trade or business or maintaining a
permanent establishment, or being physically present
in, the United Kingdom) other than the mere holding
of this Security or the receipt of principal and
interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who
presents this Security (where presentation is
required) for payment more than 30 days after the
Relevant Date except to the extent that the Holder
would have been entitled to such Additional Amounts
on presenting this Security for payment on the last
day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who
presents this Security (where presentation is
required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would
not be liable or subject to the withholding or
deduction by making a declaration of non-residence or
similar claim for exemption to the relevant tax
authority or who fails to comply with any other
certification, filing, identification, information or
other reporting requirements if such is a
precondition to exemption from, or the reduction in
the rate of, deduction or withholding of United
Kingdom Taxes;
26
(e) any estate, inheritance, gift, sales, transfer or
personal property taxes or any similar taxes, duties,
assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect
of any definitive Registered Security issued pursuant
to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Security (or any interest therein) been the Holder of
the Security, he would not have been entitled to payment of Additional Amounts
by reason of any one or more of clauses (a) through (f) above. If the Company
shall determine that Additional Amounts will not be payable because of the
immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of
this Security shall be deemed also to refer to any Additional Amounts which may
be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a
certified copy of the official receipts) evidencing payment of United Kingdom
Taxes. Copies of such receipts shall be made available by the Trustee to the
Holder of this Security upon request.
[Insert any special notice provisions required by any stock exchanges
upon which the Securities of a series are to be listed.]
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
27
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:____________ By:______________________
Authorized Signatory
203. Form of Reverse of Security
CE ELECTRIC UK FUNDING COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 15, 1997 (herein called the
"Original Indenture"), among the Company and The Bank of New York, as trustee,
principal paying agent, security exchange agent/registrar and transfer agent
(herein called the "Trustee", which term includes any successor trustee under
the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying
agent and transfer agent (herein called the "Paying Agent and Transfer Agent,"
which term includes any successor paying and transfer agent under the Original
Indenture), [insert particulars with respect to any indentures supplemental
thereto pursuant to which the Securities of this series are being issued] to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. Terms defined in the Indenture which are not
defined herein are used with the meanings assigned to them in the Indenture.
This Security is one of theseries designated on the face hereof [if applicable,
insert--limited in aggregate principal amount to $________ ].
[If applicable, insert-- This Security is not subject to redemption
prior to maturity.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 or more than 60 days' notice to the Holders of
such Securities as provided in the Indenture, [If applicable, insert-- (1) on
______________ in any year commencing with the year _____ and ending with the
year through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [on or after
__________ ___], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
28
If redeemed [if applicable, insert-- on or before ________________,
___%, and if redeemed] during the 12-month period beginning _______________, of
the years indicated:
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, all as provided in the
Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice to the Holders of
such Securities, as provided in the Indenture (1) on _______________ in any year
commencing with the year and ending with the year _____ through operation of the
sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [on or after
___________________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below:
If redeemed during the 12-month period beginning ____________ of the
years indicated:
Redemption Price Redemption Price for Redemption
for Redemption Through Operation Otherwise Than Through Operation of
Year of Sinking Fund the Sinking Fund
- -------------------------------------------------------------------------------
and thereafter at a Redemption Price equal to_____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, all as provided in the Indenture.]
[If applicable, insert-- Notwithstanding the foregoing, the Company may
not, prior to _______________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert-- The sinking fund for this series provides for
the redemption on _______________ in each year beginning with the year _____ and
ending with the year _____ of [If applicable, insert-- not less than $
__________ ("mandatory sinking fund") and, at the option of the Company, not
more than] $__________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the order in
which they become due].]
29
[If applicable, insert-- The Securities of this series will be
redeemable in whole or in part, at the option of the Company at any time, at a
Redemption Price equal to the greater of (i) 100% of the principal amount of the
Securities of this series being redeemed or (ii) the sum of the present values
of the remaining scheduled payments of principal of and interest on the
Securities of this series being redeemed discounted to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a discount rate equal to the Treasury Yield plus __________ basis points, plus,
for (i) or (ii) above, whichever is applicable, accrued interest on the
Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of Securities of this series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day in New York City preceding such Redemption Date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for US Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such Business Day, the
Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking
institution of international standing appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day in New York City preceding such redemption date).
"Reference Treasury Dealer" means a primary US Government securities
dealer in New York City appointed by the Company.
Notice of redemption shall be given as provided for in the Indenture
not less than 30 days nor more than 60 days prior to the Redemption Date.
30
If fewer than all the Securities of this series are to be redeemed,
selection of Securities of this series for redemption will be made by the
Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from
and after the Redemption Date, the Securities of this series or portions thereof
called for redemption will cease to bear interest, and the Holders thereof will
have no right in respect of such Securities of this series except the right to
receive the Redemption Price thereof.]
[If the Security is subject to redemption of any kind, insert-- In the
event of redemption of this Security in part only, the Trustee will reduce the
Principal Amount hereof by endorsement on Schedule A hereto such that the
Principal Amount shown on Schedule A after such endorsement will reflect only
the unredeemed portion hereof.]
[If applicable, insert-- The Securities of this series are subject to
redemption in whole but not in part upon not less than 30 nor more than 60 days'
notice given as provided in the Indenture to the Holders of Securities of this
series at a price equal to the outstanding principal amount thereof together
with Additional Amounts, if any, and accrued and unpaid interest, if any, to the
Redemption Date if: (a) the Company has or will become obliged to pay Additional
Amounts as a result of [either (x)] any change in, or amendment to, the laws or
regulations of the United Kingdom or any political subdivision or any authority
or agency thereof or therein having power to tax or levy duties, or any change
in the application or interpretation of such laws or regulations, which change
or amendment becomes effective on or after the [date of the underwriting or
purchase agreement with respect to the Securities of this series,] [If the
Security is a Global Security, insert-- or (y) the issuance of definitive
Registered Securities at any time because (i) of an Optional Definitive Security
Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is
unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any
time ceases to be a "clearing agency" registered as such under the Exchange Act,
and, in either case, a successor is not appointed by the Company within 120
days; (iii) while this Global Security is subject to the transfer restrictions
set forth in the legend hereon, the Book-Entry Interests cease to be eligible
for DTC services because the Securities of such series are neither rated in one
of the top four categories by a nationally recognized statistical rating
organization nor included within a Self-Regulatory Organization system approved
by the Commission for the reporting of quotation and trade information of
securities eligible for transfer pursuant to Rule 144A, such as the PORTAL
system; or (iv) the Book-Entry Depositary notifies the Company that it is
unwilling or unable to continue as Book-Entry Depositary with respect to this
Security, and no successor is appointed by the Company within 120 days;] and (b)
such obligation cannot be avoided by the Company taking reasonable measures
available to it; provided that (i) that no notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obliged to pay such Additional Amounts were a payment in respect of the
Securities then due; and (ii) prior to the publication of any such notice of
redemption, the Company shall deliver to the Trustee both an opinion of
independent legal counsel of recognized standing addressed to the Company
stating that the Company is entitled to effect such redemption, and an Officers'
Certificate in the form specified in the Indenture stating that the obligation
to pay Additional Amounts referred to in (a) above cannot be avoided by the
Company taking reasonable measures available to it.]
31
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is NOT an Original Issue Discount Security, insert--
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture. At
any time after such declaration of acceleration with respect to Securities of
this series has been made, but before a judgment or decree for payment of money
has been obtained by the Trustee as provided in the Indenture, if all Events of
Default with respect to Securities of this series have been cured or waived
(other than the non-payment of principal of the Securities of this series which
has become due solely by reason of such declaration of acceleration) then and in
every such case, the Holders of a majority in aggregate principal amount of the
Outstanding securities of such series may, by written notice to the Company and
to the Trustee, rescind and annul such declaration and its consequences on
behalf of all of the Holders, but no such recision or annulment shall extend to
or affect any subsequent default or impair any right consequent thereon.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the manner and with
the effect provided in the Indenture. In case of a declaration of acceleration
on or before __________ in any year, the Acceleration Amount per $__________
principal amount at Stated Maturity of the Securities shall be equal to the
amount set forth in respect of such date below:
Acceleration Amount
per $__________
principal amount
Date of declaration at Stated Maturity
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the immediately preceding
date set forth in the table above, plus accrued original issue discount
(computed in accordance with the method used for calculating the amount of
original issue discount that accrues for United States federal income tax
purposes) from such next preceding date to the date of declaration at the yield
to maturity. For the purpose of this computation the yield to maturity is ____%.
Upon payment (i) of the Acceleration Amount so declared due and payable and (ii)
of interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
32
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the Indenture or any supplemental
indenture or the rights and obligations of the Company and rights of the Holders
of the Securities of any series at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
[If this Security is a Global Security, insert-- This Security shall be
exchangeable for Securities of this series registered in the names of Persons
other than the Book-Entry Depositary with respect to such series or its nominee
only as provided in this paragraph. This Security shall be so exchangeable in
whole but not in part if (a) DTC notifies the Company and the Book-Entry
Depositary that it is unwilling or unable to continue to hold the Book-Entry
Interests or DTC at any time ceases to be a "clearing agency" registered as such
under the Exchange Act, and, in either case, a successor is not appointed by the
Company within 120 days, (b) while this Global Security is subject to the
transfer restrictions set forth in the legend hereon, the Book-Entry Interests
cease to be eligible for DTC services because the Securities of such series are
neither (i) rated in one of the top four categories by a nationally recognized
statistical rating organization nor (ii) included within a Self-Regulatory
Organization system approved by the Securities and Exchange Commission for the
reporting of quotation and trade information of securities eligible for transfer
pursuant to Rule 144A, such as the PORTAL system, (c) the Book-Entry Depositary
for Securities of this series notifies the Company that it is unwilling or
unable to continue as Book-Entry Depositary with respect to this Security and no
successor is appointed within 120 days, or (d) the Company in its sole
discretion executes and delivers to the Trustee an Officers' Certificate
providing that this Security shall be so exchangeable. Additionally, this
Security shall be so exchangeable in whole or in part if there shall have
occurred and be continuing an Event of Default with respect to the Securities of
this series and the Holder, in such circumstance, shall have requested in
writing that this Security be exchanged for one or more definitive Registered
Securities (an "Optional Definitive Security Request"). Securities so issued in
exchange for this Security shall be of the same series, having the same interest
rate, if any, and maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same principal amount
as this Security and registered in such names as the Book-Entry Depositary for
this Security shall direct based on the instructions of DTC.]
[If this Security is a Registered Security, insert-- As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
[if this Security is a Registered Global Security, insert-- a Security of the
series of which this Security is a part] [If this Security is a Registered
Security but not a Global Security, insert-- this Security] is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest, if any, on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
33
[If this Security is a Global Bearer Security, insert-- The bearer of
this Global Security shall be treated as the owner of it for all purposes,
subject to the terms of the Indenture.] As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination as requested by the
Holder surrendering the same.
[If this Security is a definitive Registered Security, insert--
Definitive Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $10,000 and
any integral multiple of $1,000 in excess thereof.]
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
[If this Security is a Registered Security, insert-- Prior to due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.]
When a successor assumes all the obligations of its predecessor under
the Securities of this series and the Indenture in accordance with the terms of
the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities of this series and may
otherwise deal with the Company, its Subsidiaries or their respective Affiliates
as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate
of the Company shall have any liability for any obligation of the Company under
the Securities of this series or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of
the Securities of this series by accepting a Security of this series waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
[Customary abbreviations may be used in the name of a Holder of a
Registered Security of this series or an assignee such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).]
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities of this series as a convenience to the Holders of the
Securities of this series. [If this Security is to be listed on the Luxembourg
Stock Exchange or is a Regulation S Security, insert -- This Security will also
bear an ISIN number and a Common Code.] No representation is made as to the
accuracy of such numbers as printed on the Securities of this series and
reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the principles of
conflict of laws thereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
34
[IF SECURITY IS A GLOBAL SECURITY, INSERT AS A SEPARATE PAGE--]
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_______________
Date Principal Principal Principal Notation made
adjustment amount amount amount on behalf of the
made increase decrease following Security Exchange
adjustment Agent/Registrar
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
- ------------- ------------- ------------- ------------- --------------------
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- ------------- ------------- ------------- ------------- --------------------
35
204. Form of Trustee's Certificate of Authentication
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:___________ By: _______________________
Authorized Signatory
205. Form of Trustee's Certificate of Authentication by an Authenticating Agent
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication by such Authenticating Agent to be borne by the Securities of
each such series shall be substantially as follows:
36
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: [NAME OF AUTHENTICATING
AGENT],
as Authenticating Agent
Dated:___________ By: __________________________________
Authorized Signatory
37
ARTICLE III
THE SECURITIES
301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth or determined in the manner provided in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 305, 306, 309 or 906, and
except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than (a) the bearer (in the case of a Global
Bearer Security) or (b) the Person in whose name the Security (or one
or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest (in the case of a
Registered Security);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(6) the place or places, if any, in addition to or in the place of the
Corporate Trust Office, where the principal of (and premium, if any)
and interest, if any, on Securities of the series shall be payable and
(in the case of the Registered Securities) where such Securities may be
registered or transferred;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof; and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
and any provisions in addition to or in lieu of the provisions of
Article Twelve applicable to the Securities of such series;
38
(9) if other than denominations of $10,000 and any integral multiple of
$1,000 in excess thereof, the denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(11) if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or private
debts, the coin or currency, including composite currencies such as the
European Currency Unit, in which payment of the principal of (and
premium, if any) and interest, if any, on the Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the designation of "Outstanding" in Section
101;
(12) if the principal of (and premium, if any) or interest, if any, on the
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units which may be
elected and the period or periods within which, and the terms and
conditions upon which, such election may be made and the amount so
payable;
(13) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of the series may be determined
with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);
(15) any provisions permitted by this Indenture relating to Events of
Default or covenants of the Company with respect to such series of
Securities (including whether or not Additional Amounts are to be
payable with respect to such series of Securities);
(16) if the Securities of the series shall be issued in whole or in part in
the form of one or more Global Securities, (i) whether beneficial
owners of interests in any such Global Security may exchange such
interests for Securities of such series of like tenor and of authorized
form and denomination and the circumstances under which any such
changes may occur, if other than in the manner provided in Section
309(b)(ii), and any related certificates in addition to those set forth
in Section 315 and, (ii) the Book-Entry Depositary for such Global
Security or Securities;
39
(17) if the Company wishes to issue definitive Bearer Securities, then all
provisions relating to or governing such Bearer Securities will be set
forth in an indenture supplemental hereto;
(18) any deletion of, addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(19) any deletion of, addition to or change in the covenants set forth
in Sections 1004 and 1005 which applies to Securities of the series;
(20) any information the Company shall be obligated to provide to the
Trustee, and the Trustee shall be obligated to promptly forward to
Holders of Securities of the series, pursuant to Section 703(b);
(21) the form of any legend(s) which shall be borne by any Restricted
Securities in addition to or in lieu of that set forth in Section 202;
any circumstances in addition to or in lieu of those set forth in
Section 308(b) in which such legend(s) may be removed or modified; any
circumstances in addition to or in lieu of those set forth in Section
308(a) in which definitive Securities may be registered for transfer;
and any certificates in addition to or in lieu of those set forth in
Section 315; and
(22) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and set forth in the Officers'
Certificate referred to above or in any indenture supplemental hereto referred
to above.
If any of the terms of the Securities of a series, including the form
of Security of such series, are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
a Director or any authorized officer of the Company, and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such series of Securities.
302. Denominations
The Securities of each series shall be issuable in bearer form or in
registered form without coupons, except as otherwise expressly provided in a
supplemental indenture hereto, in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $10,000 and any integral multiple of $1,000 in excess
thereof.
40
303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by any
Director of the Company so authorized and need not be attested. Definitive
Registered Securities of any series may have the Company's seal reproduced
thereon which need not be attested. The Securities of any series shall be
executed by such additional Director or officer, if any, as shall be specified
pursuant to Section 301. The signature of any such Person on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signature of any individual
who was at any time the proper Director or officer (if applicable), or the
designee of either of them, of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold such office at
the date of authentication of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601 and 603) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company,
enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or
affecting the enforcement of creditors' rights and to
general principles of equity and such other matters
as counsel may specify therein.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued and reasonably contemplate the
issuance of each Security of such series.
41
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310 together
with a written statement (which need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
304. Transfer Agent and Paying Agent
For so long as Securities of any series are listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, the Company shall
maintain a Paying Agent and Transfer Agent in Luxembourg.
The Company shall enter into an appropriate agency agreement with any
Security Exchange Agent/Registrar, Transfer Agent or Paying Agent not a party to
this Indenture, which shall implement the provisions of this Indenture that
relate to such Person. The Company shall notify the Trustee of the name and
address of any such Person. If the Company fails to maintain a Security Exchange
Agent/Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 607. The
Company initially appoints the Trustee as Transfer Agent and Principal Paying
Agent in The City of New York and Banque Internationale a Luxembourg S.A. as
Paying Agent and Transfer Agent in Luxembourg in connection with the Securities.
305. Temporary Securities
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon compliance by the Company with Section 303, the
Trustee or the Authenticating Agent shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form, and with such appropriate insertions,
omissions, substitutions and other variations as the Director or officer (if
applicable) executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder except as provided in Section 306 (if in
connection with a transfer) and except that a Person receiving definitive Bearer
Securities shall bear the cost of insurance, postage, transportation and the
like. Upon surrender for cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee or the Authenticating Agent
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
42
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security for the individual Securities represented thereby
pursuant to this Section 305 or Section 306, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the principal amount of
such temporary Global Security, and such principal amount shall be reduced for
all purposes by the amount so exchanged and endorsed.
306. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities, transfers of Registered Securities and
Restricted Securities and exchanges of Securities. The Trustee is hereby
initially appointed "Security Exchange Agent/Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities and
Restricted Securities, and for the purpose of exchanging Securities, all as
herein provided. The Company may appoint one or more coregistrars and the term
"Security Exchange Agent/Registrar" includes any coregistrar. For so long as a
series of Securities is listed on the Luxembourg Stock Exchange and the rules of
such Exchange so require, and if the Securities of such series have been issued
in definitive registered form, an office or agency where the Securities of such
series may be surrendered for registration of transfer and exchange shall be
maintained in Luxembourg.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee or the Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Registered Security or Registered
Securities of any series may be exchanged for other Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Registered Securities to be exchanged at
such office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and upon receipt of a Company Order the
Trustee or the Authenticating Agent shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.
The Trustee, the Authenticating Agent or the Security Exchange
Agent/Registrar may not deliver definitive Bearer Securities in exchange for
Registered Securities.
All Securities issued upon any registration of transfer or exchange of
Securities as provided in this Indenture shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
43
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Exchange Agent/Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 305, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
under Section 1103 and ending at the close of business on the day of such
mailing, (ii) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of the series (but only if and under the circumstances for
which the Securities of such series are issuable as Registered Securities),
provided that such Registered Security shall be immediately surrendered for
redemption with written instructions for payment consistent with the provisions
of this Indenture.
The provisions of this Section 306 are, with respect to any Global
Security, subject to Section 309 hereof.
307. Bearer Securities
A Global Bearer Security may be transferred in any manner not
inconsistent with, or exchanged for another Security of the same series as
provided in, Section 308(a)(i) and Section 309. Bearer Securities of any series
may be issued in definitive form only as may be provided in an indenture
supplemental hereto, in accordance with Section 301(17); provided that no Bearer
Security may be issued in definitive form with respect to any series of
Securities which are Restricted Securities.
308. Restricted Securities
(a) Transfer and Exchange.
(i) In General. Every Restricted Security shall be
subject to the restrictions on transfer provided in the applicable legend(s)
required to be set forth on the face of each Restricted Security pursuant to
Section 201 or as provided pursuant to Section 301, unless such restrictions on
transfer shall be waived or modified, in accordance with applicable laws, by the
written consent of the Company. Each of the Holder of each Restricted Security,
and the owners of beneficial interests in any Book-Entry Interest therein, by
its acceptance thereof, agrees to be bound by such restrictions on transfer.
44
(ii) Special Provisions Regarding Transfer of
Restricted Securities in Definitive Form. Unless expressly provided otherwise
in the Indenture, whenever any Restricted Security is presented or surrendered
for registration of transfer, such Restricted Security must be accompanied by a
certificate in substantially the form set forth in or contemplated by Section
315(b) (which may be attached to or set forth in the Restricted Security),
appropriately completed, dated the date of such surrender and signed by the
Holder of such Restricted Security, as to compliance with such restrictions on
transfer, unless the Company shall have notified the Trustee that there is an
effective registration statement under the Securities Act with respect to such
Restricted Security. Neither the Security Exchange Agent/Registrar nor any
Transfer Agent shall be required to accept for such registration of transfer or
exchange any Restricted Security not so accompanied by a properly completed
certificate.
(b) Removal of Transfer Restrictions.
Unless with respect to the whole or any portion of any Restricted
Security the Company determines otherwise in accordance with applicable law,
transfer restrictions and any restrictive legend(s) with respect to Restricted
Securities of any series shall be removed by the Company (i) in the case of Rule
144A Securities, upon presentation of such Security by the Holder at any time on
or after the expiration of the Holding Period, or (ii) in the case of Regulation
S Securities, upon presentation or such Security by the Holder at any time on or
after the expiration of the Restricted Period. Thereafter, upon registration of
transfer of or exchange of such Securities, the Company shall execute, and the
Trustee shall authenticate and deliver, an Unrestricted Security.
Except as otherwise provided in the preceding paragraph, if Securities
are issued upon the registration of transfer, exchange or replacement of
Securities bearing a legend or legends setting forth restrictions on transfer,
or if a request is made to remove such legend(s) from a Security, the Securities
so issued shall bear such legend(s), or such legend(s) shall not be removed, as
the case may be, unless there is delivered to the Company such satisfactory
evidence (which may include an opinion, reasonably satisfactory to the Company,
of independent counsel experienced in matters of United States securities law)
as may be reasonably required by the Company that neither such legend(s) nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A or Rule 144 or Regulation S
under the Securities Act or that such Securities are not "restricted securities"
within the meaning of Rule 144 under the Securities Act. Upon provision of such
satisfactory evidence to the Company, the Trustee, at the direction of the
Company, shall authenticate and deliver a Security that does not bear such
legend(s). In the absence of bad faith on its part, the Trustee may conclusively
rely upon such direction of the Company in authenticating and delivering a
Security that does not bear such legend(s).
As used in this Section 308, the term "transfer" encompasses any sale,
pledge or other transfer of any Securities referred to herein.
45
309. Global Securities
(a) Form and Legend.
If the Company shall establish pursuant to Section 301 that the
Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303, authenticate and deliver, a Global Security or Securities
which (i) shall represent, and shall be denominated in an aggregate amount equal
to the aggregate principal amount of, all of the Outstanding Securities of such
series, (ii) shall be in bearer form or, if in registered form, registered in
the name of the Book-Entry Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Book-Entry Depositary for such series or pursuant to the
Book-Entry Depositary's instruction and (iv) shall bear a legend substantially
to the effect of the first two paragraphs of the form of face of Security set
forth in Section 202.
(b) Transfer and Exchange.
(i) Transfers of Global Notes as such. Except as
otherwise expressly provided in this Indenture or any supplement thereto, a
Global Security representing all or a portion of the Securities of a series may
not be transferred in global form, except as a whole (i) by the Book-Entry
Depositary for such series to a nominee of such Book-Entry Depositary; (ii) by a
nominee of such Book-Entry Depositary to such Book-Entry Depositary or another
nominee of such Book-Entry Depositary; or (iii) by such Book-Entry Depositary or
any such nominee to a successor Book-Entry Depositary for such series or a
nominee of such successor Book-Entry Depositary.
(ii) Exchanges of Globa1 Securities for Definitive
Securities. A Global Security of a series shall be exchangeable, in whole but
not in part, for definitive Securities of such series if (a) DTC notifies the
Company and the Book-Entry Depositary that it is unwilling or unable to continue
to hold the Book-Entry Interests or DTC at any time ceases to be a "clearing
agency" registered as such under the Exchange Act, and, in either case, a
successor is not appointed by the Company within 120 days; (b) while a Global
Security is a Restricted Security the Book-Entry Interests cease to be eligible
for DTC services because the Securities of such series are neither (i) rated in
one of the top four categories by a nationally recognized statistical rating
organization nor (ii) included within a Self-Regulatory Organization system
approved by the Commission for the reporting of quotation and trade information
of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL
system; (c) the Book-Entry Depositary for Securities of this series notifies the
Company that it is unwilling or unable to continue as Book-Entry Depositary with
respect to such Global Security and no successor is appointed within 120 days;
or (d) the Company in its sole discretion executes and delivers to the Trustee
an Officers' Certificate providing that such Global Security shall be so
exchangeable. Securities so issued in exchange for any such Global Security
shall be of the same series, having the same interest rate, if any, and maturity
and having the same terms as such Global Security, in authorized denominations
and in the aggregate having the same principal amount as such Global Security
and registered in such names as the Book-Entry Depositary for such Global
Security shall direct based on the instructions of DTC. Upon such exchange, the
surrendered Global Security shall be cancelled by the Trustee.
46
A Global Security of a series shall be exchangeable, in whole or in
part, for definitive Registered Securities of such series if there shall have
occurred and be continuing an Event of Default with respect to the Securities of
such series and the Holder, in such circumstances, shall have requested in
writing that all or a part of the Global Security of such series be exchanged
for one or more definitive Registered Securities (an "Optional Definitive
Security Request"). Upon any such surrender, (i) the Company shall execute and
the Trustee shall authenticate and deliver without charge to each Person
specified by DTC, in exchange for such Person's beneficial interest in the
Book-Entry Interest in the Global Security, a new Security or Securities of the
same series in definitive registered form having the same interest rate, if any,
and maturity and having the same terms as such Global Security, in any
authorized denomination requested by such Person and of an aggregate principal
amount equal to such Person's beneficial interest in the Global Security; and
(ii) if the Global Security is being exchanged (x) as a whole, then the
surrendered Global Security shall be cancelled by the Trustee, or (y) in part,
then the principal amount of the surrendered Global Security shall be reduced by
an endorsement on Schedule A thereto in the appropriate amount.
Unless otherwise provided pursuant to a Board Resolution in accordance
with Section 301, definitive Securities issued in exchange for a Global Security
pursuant to this Section 309(b)(ii) shall be issued only in registered form and
shall be registered in such names and in such authorized denominations as the
Book-Entry Depositary for such Global Security, pursuant to instructions from
DTC and its Participants or Indirect Participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Persons in whose
names such Securities are so registered.
(c) Beneficial Interests.
Subject to Section 308 and Section 309, beneficial interests in the
Book-Entry Interest in a Global Security may be transferred in any manner
consistent with the Applicable Procedures and the Deposit Agreement.
(d) Special Provisions Regarding Transfer of Beneficial
Interests in a Regulation S Global Security.
The transfer of beneficial interests in a Book-Entry Interest in a
Regulation S Global Security shall be effected in a manner not inconsistent with
the following provisions:
(i) Transfer Through a Rule 144A Global Security. If
the holder of a beneficial interest in a Book-Entry Interest in a Regulation S
Global Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in a Rule
144A Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 309(d)(i). Upon receipt by the
Book-Entry Depositary of the instructions, order and certificate set forth
below, the Book-Entry Depositary shall promptly forward the same to the Security
Exchange Agent/Registrar at the Corporate Trust Office. Upon receipt by the
Security Exchange Agent/Registrar from the Book-Entry Depositary at the
Corporate Trust Office of (1) written instructions given in accordance with the
Applicable Procedures from a Participant directing the Book-Entry Depositary to
cause to be credited to a specified Participant's account a beneficial interest
in a Book-Entry Interest in the Rule 144A Global Security equal to that of the
beneficial interest in the Book-Entry Interest in the Regulation S Global
Security to be so transferred, (2) a written order given in accordance with the
47
Applicable Procedures containing information regarding the account of the
Participant to be credited with, and the account of the Participant held for
Euroclear or Cedel (as the case may be) to be debited for, such beneficial
interest, and (3) a certificate substantially in the form set forth in or
contemplated by Section 315(a) given by the transferor of such beneficial
interest, the Security Exchange Agent/Registrar, shall (A) reduce the principal
amount of the Regulation S Global Security, and increase the principal amount of
the Rule 144A Global Security, in each case by an amount equal to the principal
amount of the beneficial interest in the Book-Entry Interest in the Regulation S
Global Security to be so transferred, as evidenced by appropriate endorsements
on Schedule A of the respective Global Securities and (B) instruct the
Book-Entry Depositary, which shall instruct DTC in accordance with the Letter of
Representations (x) to make corresponding reductions and increases to the
Book-Entry Interests in the respective Global Securities and (y) to cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in a Book-Entry Interest in the Rule 144A Global Security
having a principal amount equal to the amount by which the principal amount of
the Book-Entry Interest in the Regulation S Global Security was reduced upon
such transfer.
Delivery of a beneficial interest in a Book-Entry Interest in the
Regulation S Global Security of any series may not be taken in the form of a
beneficial interest in a Book-Entry Interest in the Rule 144A Global Security if
immediately prior to the contemplated transfer no Rule 144A Global Security of
the same series is then Outstanding.
(ii) Interests in Regulation S Global Security
Initially to be Held Through Euroclear or Cedel. Until the termination of the
Restricted Period with respect to Securities of a series, beneficial interests
in any Book-Entry Interest in a Regulation S Global Security of such series may
be held only through Participants acting for and on behalf of Euroclear and
Cedel; provided that this Section 309(d)(ii) shall not prohibit any transfer
otherwise permissible under Section 309(d)(i).
(e) Special Provisions Regarding Transfer of Beneficial
Interests in a Rule 144A Global Security.
The transfer of beneficial interests in a Book-Entry Interest in a Rule
144A Global Security shall be effected in a manner not inconsistent with the
following provisions:
(i) Transfer Through a Regulation S Global Security.
If the holder of a beneficial interest in a Book-Entry Interest in a Rule 144A
Global Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in a
Regulation S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 309(e)(i). Upon
receipt by the Book-Entry Depositary of the instructions, order and certificate
set forth below, the Book-Entry Depositary shall promptly forward the same to
the Security Exchange Agent/Registrar at the Corporate Trust Office. Upon
receipt by the Security Exchange Agent/Registrar from the Book-Entry Depositary
at the Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Participant directing the Book-Entry
48
Depositary to cause to be credited to a specified Participant's account a
beneficial interest in a Book-Entry Interest in the Regulation S Global Security
equal to that of the beneficial interest in the Book-Entry Interest in the Rule
144A Global Security to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the Participant held for Euroclear or Cedel (as the case may be) to
be credited with, and the account of the Participant to be debited for, such
beneficial interest, and (3) a certificate substantially in the form set forth
in or contemplated by Section 315(c) given by the transferor of such beneficial
interest, the Security Exchange Agent/Registrar, shall (A) reduce the principal
amount of the Rule 144A Global Security, and increase the principal amount of
the Regulation S Global Security, in each case by an amount equal to the
principal amount of the beneficial interest in the Book-Entry Interest in the
Rule 144A Global Security to be so transferred, as evidenced by appropriate
endorsements on Schedule A of the respective Global Securities and (B) instruct
the Book-Entry Depositary, which shall instruct DTC in accordance with the
Letter of Representations (x) to make corresponding reductions and increases to
the Book-Entry Interests in the respective Global Securities and (y) to cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in a Book-Entry Interest in the Regulation S Global Security
having a principal amount equal to the amount by which the principal amount of
the Book-Entry Interest in the Rule 144A Global Security was reduced upon such
transfer.
Delivery of a beneficial interest in a Book-Entry Interest in the Rule
144A Global Security of any series may not be taken in the form of a beneficial
interest in a Book-Entry Interest in the Regulation S Global Security if
immediately prior to the contemplated transfer no Regulation S Global Security
of the same series is then Outstanding.
(ii) Transfer Through an Unrestricted Global
Security. If the holder of a beneficial interest in a Book-Entry Interest in a
Rule 144A Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section 309(e)(ii). Upon
receipt by the Book-Entry Depositary of the instructions, order and certificate
set forth below, the Book-Entry Depositary shall promptly forward the same to
the Security Exchange Agent/Registrar at the Corporate Trust Office. Upon
receipt by the Security Exchange Agent/Registrar from the Book-Entry Depositary
at the Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Participant directing the Book-Entry
Depositary to cause to be credited to a specified Participant's account a
beneficial interest in a Book-Entry Interest in the Unrestricted Global Security
equal to that of the beneficial interest in the Book-Entry Interest in the Rule
144A Global Security to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the Participant (and, in the case of any such transfer pursuant to
Regulation S, the Euroclear or Cedel account for which such Participant's
account is held) to be credited with, and the account of the Participant to be
debited for, such beneficial interest, and (3) a certificate substantially in
the form set forth in or contemplated by Section 315(d) given by the transferor
of such beneficial interest, the Security Exchange Agent/Registrar, shall (A)
reduce the principal amount of the Rule 144A Global Security, and increase the
principal amount of the Unrestricted Global Security, in each case by an amount
equal to the principal amount of the beneficial interest in the Book-Entry
Interest in the Rule 144A Global Security to be so transferred, as evidenced by
appropriate endorsements on Schedule A of the respective Global Securities and
(B) instruct the Book-Entry Depositary, which shall instruct DTC in accordance
with the Letter of Representations (x) to make corresponding reductions and
increases to the Book-Entry Interests in the respective Global Securities and
(y) to cause to be credited to the account of the Person specified in such
instructions a beneficial interest in a Book-Entry Interest in the Unrestricted
Global Security having a principal amount equal to the amount by which the
principal amount of the Book-Entry Interest in the Rule 144A Global Security was
reduced upon such transfer.
49
(f) Deposit Agreement. If so provided pursuant to Section 301,
the Company and the Book-Entry Depositary shall enter into a Deposit Agreement
setting forth, among other things, the rights and duties of the Book-Entry
Depositary as custodian for Bearer Global Securities of any series.
310. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such Security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, in each such case without
premium or penalty.
Upon the issuance of any new Security under this Section 310, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 310 in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section 310 are exclusive and shall preclude (to
the extent lawful) all other Rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
311. Payment of Interest; Interest Rights Reserved
Except as may otherwise be established as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid, in the case of a Bearer Security, to the bearer thereof or, in
the case of a Registered Security, to the Person in whose name that Registered
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
50
Payment of interest, if any, in respect of any Registered Security will
be made by check mailed to the address of the Person entitled thereto as such
person's address appearing in the Security Register. Payment of interest, if
any, in respect of any Registered Security may also be made, in the case of a
Holder of at least US $1,000,000 aggregate principal amount of Registered
Securities, and payment of interest, if any, in respect of a Permanent Global
Security shall be made, by wire transfer to a US Dollar account maintained by
the Holder with a bank in the United States; provided that such Holder elects
payment by wire transfer by giving written notice to the Trustee or a Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall, in the case of Registered Securities,
forthwith cease to be payable to the Holder thereof on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
Unless the Trustee is acting as the Security Exchange Agent/Registrar,
promptly after such Special Record Date, the Company shall furnish the
Trustee with a list, or shall make arrangements satisfactory to the
Trustee with respect thereto, of the names and addresses of, and
respective principal amounts of such Registered Securities held by, the
Holders appearing on the Security Register at the close of business on
such Special Record Date. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date ~herefore to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
~herefore having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
51
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series or any Permanent Global Security in
any other lawful manner not inconsistent with the requirements of any
Securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange.
Defaulted Interest on Global Bearer Securities shall be payable to the
bearer thereof at the time of payment of such Defaulted Interest by the Company.
Subject to the foregoing provisions of this Section 311, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security, shall carry the Rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
312. Persons Deemed Owners
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 311) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such person, or upon such person's
order, shall be valid, and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such Security.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder of a Global Bearer Security as the absolute owner of such
Security for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever under this Indenture, whether or not such
Global Bearer Security or payment be overdue, and neither the Company or the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Holders of beneficial interests in a Book-Entry Interest in a Global
Security of any series will not be entitled to receive certificates therefor,
except in the limited circumstances set forth in Section 309(b)(ii). No holder
of any beneficial interest in a Book-Entry Interest in a Global Security shall
have any rights under this Indenture with respect to such Global Security.
The Trustee shall not deem requests or directions from, or votes by,
the Book-Entry Depositary for a Global Security of any series to be inconsistent
if made on behalf of different holders of beneficial interests in a Book-Entry
Interest.
Dealings between the Book-Entry Depositary and DTC and its Participants
relating to exercising the rights of the Holders hereunder and the rights of
owners of beneficial interests in any Book-Entry Interest in a Global Bearer
Security shall be governed by the Deposit Agreement and the Letter of
Representations.
52
313. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section
313, except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be returned to the Company upon written request.
314. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
315. Certification Form
(a) Except as otherwise specified as contemplated by Section
301 for Securities of any series, whenever any certification is to be given by a
beneficial owner of a Book-Entry Interest in a Regulation S Global Security
pursuant to Section 309(d) of this Indenture, in connection with the transfer of
a beneficial interest therein to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Book-Entry Interest in a Rule 144A Global
Security, such certification shall be provided substantially in the form of the
following certificate (which may be attached to or set forth on the Security),
including or omitting bracketed language as appropriate, but otherwise with only
such changes as may be approved in writing by the Company:
53
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM REGULATION S
GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
(Transfers Pursuant to ss.309(d) of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York, New York 10286
Re: CE Electric UK Funding Company
% Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15,
1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New
York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and
Transfer Agent and Banque Internationale a Luxembourg S.A., as Paying Agent and
Transfer Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to US $ principal amount of Securities which are
evidenced by one or more Regulation S Global Securities in bearer form (ISIN No.
_____) and held with the Book-Entry Depositary by means of a Book-Entry Interest
through [Euroclear] [Cedel] in the name of [insert name of transferor] (the
"Transferor").] The Transferor has requested a transfer of such beneficial
interest in the Book-Entry Interest to a Person that will take delivery thereof
(the "Transferee") in the form of any equal principal amount of Securities
evidenced by one or more Rule 144A Global Securities (CUSIP No. ).]
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that the interests in the Book-Entry Interest are
being transferred pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, and, accordingly, the Transferor does hereby further
certify that the interests in the Book-Entry Interest are being transferred to a
Person that the Transferor reasonably believes is purchasing the Securities 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 each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers of the Securities being transferred.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
--------------------
cc: CE Electric UK Funding Company
54
(b) Except as otherwise specified as contemplated by Section
301 for Securities of any series, whenever any certification is to be given by a
Holder of a Security pursuant to Section 308(a)(ii) of this Indenture in
connection with the transfer or exchange of a definitive Restricted Security,
such certification shall be provided substantially in the form of the following
certificate (which may be attached to or set forth on the Security), including
or omitting bracketed language as appropriate, but otherwise with only such
changes as may be approved in writing by the Company:
55
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES
THAT ARE RESTRICTED SECURITIES
(Transfers Pursuant to ss.308(a)(ii)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York, New York 10286
Re: CE Electric UK Funding Company
% Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15,
1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New
York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and
Transfer Agent and Banque Internationale a Luxembourg S.A., as Paying Agent and
Transfer Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to US $ principal amount of Securities presented or
surrendered on the date hereof (the "Surrendered Securities") which are
registered in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such Surrendered Securities registered in
the name of a Person (the "Transferee") other than the Transferor (each such
transaction being referred to herein as a "transfer").
In connection with such request and in respect of such Surrendered
Securities, the Transferor does hereby certify that:
[CHECK ONE]
o (1) the Surrendered Securities are being transferred to the
Company or an Affiliate thereof;
o (2) the Surrendered Securities are being transferred pursuant to
and in accordance with Rule 144A under the Securities Act
of 1933 (the "Securities Act") and, accordingly, the
Transferor does hereby further certify that the Surrendered
Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Surrendered
Securities 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 each case in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable
securities laws of any state of the United States; or
56
o (3) the Surrendered Securities are being transferred pursuant to
and in accordance with Regulation S and:
(A) the offer of the Surrendered Securities was not
made to a Person in the United States;
(B) either:
(i) at the time the buy order
was originated, the
transferee was outside the
United States or the
Transferor and any Person
acting on its behalf
reasonably believed that
the transferee was outside
the United States, or
(ii) the transaction was
executed in, on or through
the facilities of a
designated offshore
securities market and
neither the Transferor nor
any Person acting on its
behalf knows that the
transaction was prearranged
with a buyer in the United
States;
(C) no directed selling efforts have been made
in contravention of the requirements of Rule
903(b) or 904(b) of Regulation S, as
applicable; and
(D) the transaction is not part of a plan or
scheme to evade the registration
requirements of the Securities Act;
or
o (4) the Surrendered Securities are being transferred in a trans-
action permitted by Rule 144.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers of the Securities being transferred.
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
--------------------
cc: CE Electric UK Funding Company
Signature Guaranty:_____________________
57
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Exchange Agent/Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Exchange Agent/Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
(c) Except as otherwise specified as contemplated by Section
301 for Securities of any series, whenever any certification is to be given by a
beneficial owner of a Book-Entry Interest in a Rule 144A Global Security
pursuant to Section 309(e)(i) of this Indenture in connection with the transfer
of a beneficial interest therein to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Book-Entry Interest in a Regulation S
Global Security, such certification shall be provided substantially in the form
of the following certificate (which may be attached to or set forth on the
Security), with only such changes as shall be approved in writing by the
Company.
58
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to ss. 309(e)(i)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York New York 10286
Re: CE Electric UK Funding Company
% Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15,
1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New
York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and
Transfer Agent and Banque Internationale a Luxembourg, S.A., as Paying Agent and
Transfer Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to US$ principal amount of Securities which are
evidenced by one or more Rule 144A Global Securities (CUSIP No. ) and held
through DTC in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a non-US Person who will take delivery thereof in the form of an
equal principal amount of Securities evidenced by one or more Regulation S
Global Securities (CUSIP No. ), which amount, immediately after such transfer,
is to be held with DTC through Euroclear or Cedel or both (Common Code ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either:
(A) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any Person acting
on its behalf reasonably believed that the transferee was outside the
United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any Person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
59
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with DTC through Euroclear or Cedel
or both (Common Code ).
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters or initial
purchasers, if any, of the initial offering of such Securities being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated: , 199_
----------
cc: CE Electric UK Funding Company
Signature Guaranty:____________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Exchange Agent/Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Exchange Agent/Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
(d) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, whenever any certification is to be given by a
beneficial owner of a Book-Entry Interest in a Rule 144A Global Security
pursuant to Section 309(e)(ii) of this Indenture in connection with the transfer
of a beneficial interest in the Rule 144A Global Security to a Person who wishes
to take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved in
writing by the Company.
60
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO UNRESTRICTED GLOBAL SECURITY
(Transfers pursuant to ss. 309(e)(ii)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York New York 10286
Re: CE Electric UK Funding Company
% Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15,
1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New
York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and
Transfer Agent and Banque Internationale a Luxembourg, S.A., as Paying Agent and
Transfer Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to US$ principal amount of Securities which are
evidenced by one or more Rule 144A Global Securities (CUSIP No. ) and held
through DTC in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by one or more Unrestricted Global
Securities (CUSIP No. ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with either Rule 903, Rule 904 or Rule 144 under the United
States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903
or Rule 904:
(A) the offer of the Securities was not made to a
Person in the United States;
(B) either:
(i) at the time the buy order was
originated, the transferee was outside the United
States or the Transferor and any Person acting on its
behalf reasonably believed that the transferee was
outside the United States, or
(ii) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
Person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the
United States;
61
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act;
or
(2) if the transfer has been effected pursuant to Rule 144,
the Securities have been transferred in a transaction permitted by Rule
144.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Securities being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: l99_
----------
cc: CE Electric UK Funding Company
316. CUSIP and ISIN Numbers.
The Company in issuing the Securities may use "CUSIP" numbers or "ISIN"
numbers (in either case, if then generally in use), and, if so, the Trustee
shall use "CUSIP" or "ISIN" numbers, as applicable, in notices of redemption as
a convenience to Holders; provided that the Trustee shall assume no
responsibility for the accuracy of such numbers and any such redemption shall
not be affected by any defect in or omission of such numbers.
62
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and any rights to receive payments of
any principal, premium or interest in respect thereof as provided in Section
1001), and the Trustee shall execute instruments in form and substance
satisfactory to itself and to the Company acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 310 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 402, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount of (a) money or (b) US Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will provide not later than one day before the Stated Maturity
or Redemption Date, as the case may be, money, or (c) a
combination of money and such US Government Obligations, in
each case, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal, premium, if any,
and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
63
(2) the Company has paid, caused to be paid or made provision
satisfactory to the Trustee for payment of all other sums payable hereunder by
the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of independent counsel of recognized standing, each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
following rights and obligations shall survive: (i) the obligations of the
Company to the Trustee under Section 607(3), (ii) the obligations of the Trustee
to any Authenticating Agent under Section 614, (iii) if money or US Government
Obligations shall have been deposited with or received by the Trustee pursuant
to Section 401(1)(B) or Section 402, the obligations of the Trustee under
Section 403 and the last paragraph of Section 1003, (iv) any rights of
registration of transfer, exchange or replacement of Securities provided in
Article Three and Sections 906, 1002 and 1107, and (v) any rights to Additional
Amounts pursuant to Section 1009.
402. Defeasance, Discharge and Covenant Defeasance
(a) Defeasance and Discharge of a Series of Securities. The
Company shall be deemed to have been discharged from its obligations with
respect to Outstanding Securities of any series, as provided in this Section
402(a) on and after the date the applicable conditions set forth in subsection
(c) hereof are satisfied (hereinafter called "Defeasance") with respect to such
Securities. For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness representing the
Outstanding Securities of such series and to have satisfied all of its other
respective obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of Securities of such series
to receive, solely from the trust fund described in Section 403 and as more
fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(ii) the Company's obligations with respect to the Securities of such series
under Article Three and Sections 1002, 1003 and 1009 (to the extent then known),
(iii) the rights (including without limitation, the rights set forth in Section
607), powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Article. Subject to compliance with this Article, the Company may defease
any Securities pursuant to this Section notwithstanding the prior Covenant
Defeasance of such Series pursuant to subsection (b) hereof.
(b) Covenant Defeasance. On and after the date the applicable
conditions set forth in subsection (c) hereof are satisfied (hereinafter called
"Covenant Defeasance") with respect to the Outstanding Securities of any series,
(i) the Company shall be released from its obligations under Sections 801, 1004
and 1005, and any covenants established as contemplated by Section 301 or
adopted by indenture supplemental hereto under Section 901(2) for the benefit of
the Holders of such Securities and (ii) the occurrence of any event specified in
Sections 501(3) and 501(4) or pursuant to Section 501(7) with respect to any
obligations referred to in Clause (i) shall be deemed not to be or result in an
Event of Default, in each case with respect to the Outstanding Securities of
such series as provided in this Section. For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
64
(c) Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the Defeasance or the Covenant Defeasance
pursuant to this Section 402 of the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to effect a
Defeasance or a Covenant Defeasance pursuant to this Section
402 with respect to the Outstanding Securities of any series
specified in such Board Resolution;
(2) The Company shall irrevocably have deposited or caused to
be deposited (except as provided in Section 607, Section
403(c) and the last paragraph of Section 1003) with the
Trustee (specifying that each such deposit is pursuant to this
Section 402) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Outstanding Securities of such series, (a) money, or (b) US
Government Obligations which through the payment of principal
and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment, money, or (c) a combination thereof, in each case
in an amount sufficient, in the opinion of a nationally
recognized firm of independent accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to
pay and discharge, the principal of and any premium and
interest (Additional Amounts then known) on the Securities of
such series on the respective Stated Maturities (or if the
Company has designated a Redemption Date pursuant to the next
sentence of this clause (2), to and including the Redemption
Date so designated by the Company), in accordance with the
terms of this Indenture and the Securities of such series. If
the Company shall wish to deposit or cause to be deposited
money or US Government Obligations to pay or discharge the
principal of (and premium, if any) and interest, if any, on
the outstanding Securities of such series to and including a
Redemption Date on which all of the outstanding Securities of
such series are to be redeemed, such Redemption Date shall be
irrevocably designated by a Board Resolution delivered to the
Trustee on or prior to the date of deposit of such money or US
Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee
give notice of such redemption in the name and at the expense
of the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with this Indenture;
(3) In the event of a Defeasance pursuant to Section 402(a),
the Company shall have delivered to the Trustee an opinion of
independent counsel of recognized standing stating that (x)
the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (y) since the date of
this instrument, there has been a change in the applicable US
federal income tax law, in either case (x) or (y) to the
effect that, and based thereon such opinion shall confirm
that, the Holders and any beneficial owners of the Book-Entry
Interests in Outstanding Securities of such series will not
recognize income, gain or loss for US federal income tax
purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to the Outstanding Securities of
such series and will be subject to US federal income tax on
the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge
were not to occur;
65
(4) In the event of a Covenant Defeasance pursuant to Section
402(b), the Company shall have delivered to the Trustee an
opinion of independent counsel of recognized standing to the
effect that the Holders and any beneficial owners of the
Book-Entry Interests in Outstanding Securities of such series
will not recognize income, gain or loss for US federal income
tax purposes as a result of the deposit with and Covenant
Defeasance to be effected with respect to the Outstanding
Securities of such series and will be subject to US federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Covenant
Defeasance and discharge were not to occur;
(5) The Company shall have delivered to the Trustee an opinion
of independent counsel of recognized standing in England
stating that the Trustee has a valid security interest over
such deposit;
(6) The Securities of such series, if then listed on any
securities exchange, will not be delisted as a result of such
deposit;
(7) No event which is, or after notice or lapse of time or
both would become, an Event of Default (including by reason of
such deposit) with respect to the Outstanding Securities of
such series shall have occurred and be continuing at the time
of such deposit;
(8) If the Trust Indenture Act shall be applicable to the
Securities of such series, such Defeasance or Covenant
Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of
such Act);
(9) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party
or by which it is bound; and
(10) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance have
been complied with.
403. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section 1003,
all money or US Government Obligations deposited with the Trustee pursuant to
Sections 401 or 402 and all money received by the Trustee in respect of US
Government Obligations deposited with the Trustee pursuant to Sections 401 or
402, shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the principal of (and
premium, if any) and interest, if any, on the Securities for whose payment such
money has been deposited with or received by the Trustee.
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(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Trustee or the trust
created hereby with respect to US Government Obligations deposited pursuant to
Sections 401 or 402 or the interest and principal received in respect thereof
other than any such tax, fee or other charge which by law is payable by or on
behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any monies or US Government Obligations held by it as
provided in Sections 401 or 402 which, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which, at the time of such certification, would have been required to be
deposited to effect the discharge of the Indenture or of any series of
Securities, or the Defeasance or Covenant Defeasance of the Securities of any
series, as the case may be. This paragraph (c) shall not authorize the sale by
the Trustee of any US Government Obligations held under this Indenture.
404. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 401 or 402 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 403 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in Trust.
ARTICLE V
REMEDIES
501. Events of Default
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(1) default in the payment of any interest or any Additional Amounts
upon any Security of that series when it becomes due and payable and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity and the continuance of such
default for a period of 3 days; or
(3) default in the payment of any sinking fund installment, when and as
due by the terms of a Security of that series; or
(4) material default in the performance, or breach, of any other
material covenant or obligation of the Company in this Indenture (other
than a covenant a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than that series) and continuance of such
material default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
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(5) default in the payment of the principal of any bond, debenture,
note or other evidence of indebtedness, in each case for money borrowed
by the Company or any Significant Subsidiary, or in the payment of
principal under any mortgage, indenture (including this Indenture) or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for Money Borrowed by the
Company or any Significant Subsidiary, if such Indebtedness for
Borrowed Money is not Project Finance Indebtedness and provides for
recourse generally to the Company which default for payment of
principal is in an aggregate principal amount exceeding the greater of
$50,000,000 or 4% of Capital and Reserves (or its equivalent in any
other currency or currencies) when such indebtedness becomes due and
payable (whether at maturity, upon redemption or acceleration or
otherwise), if such default shall continue unremedied or unwaived for
more than 30 Business Days and the time for payment of such amount has
not been expressly extended; provided, however, that, subject to the
provisions of Sections 601 and 602, the Trustee shall not be deemed to
have knowledge of such default unless either (a) a Responsible Officer
of the Trustee shall have actual knowledge of such default or (b) the
Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; and
provided further, that if such default under such indenture or
instrument shall be remedied or cured by the Company or such
Significant Subsidiary or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been remedied, cured or waived without further action
upon the part of the Trustee or any of the Holders; or
(6) The failure of the Company or a Significant Subsidiary generally to
pay its debts as they become due, or the admission in writing of its
inability to pay its debts generally, or the making of a general
assignment for the benefit of its creditors, or the institution of any
proceeding by or against the Company or a Significant Subsidiary (other
than any such proceeding brought against the Company or a Significant
Subsidiary that is dismissed within 180 days from the commencement
thereof) seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition (in each case, other than a solvent
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition) of it or its debts under any law
relating to bankruptcy, insolvency, reorganization, moratorium or
relief of debtors, or seeking the entry of an order for relief or
appointment of an administrator, receiver, trustee, intervenor or other
similar official for it or for any substantial part of its property, or
the taking of any action by the Company or a Significant Subsidiary to
authorize any of the actions set forth in this subparagraph (6); or
(7) any other Event of Default provided in the supplemental indenture
or provided in or pursuant to the Board Resolution under which such
series of Securities is issued or in the form of Security for such
series.
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502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then either the Trustee or (a) in the
case of an Event of Default described under subparagraph (1) or (2) of Section
501 above, the Holders of at least 33% in aggregate principal amount of the
Outstanding Securities of that series, or (b) in the case of any other Event of
Default, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof), and any interest accrued thereon, of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such declaration of acceleration with respect to
Securities of any series has been made, but before a judgment or decree for
payment of money has been obtained by the Trustee as hereinafter in this Article
provided, if all Events of Default with respect to Securities of that series
have been cured or waived (other than the non-payment of principal of the
Securities which has become due solely by reason of such declaration of
acceleration), then, and in every such case, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series may, by
written notice to the Company and the Trustee, rescind and annul such
declaration and its consequences on behalf of all of the Holders, but no such
rescission or annulment shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any Security of a
series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on any Security of a series at the Stated Maturity thereof and
such default continues for a period of 3 days,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities of such series, the whole amount then due and
payable on such Securities of such series for principal (and premium, if any)
and interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
any overdue interest, at the rate or rates prescribed therefor in such
Securities of such series, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If any Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights.
504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation
(other than a solvent liquidation), bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order with respect to the Securities of any series, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: In case the principal and premium, if any, of the Securities of
such series in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest, if any, on the
Securities of such a series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee and to the extent permitted by law) upon the
overdue installments of interest at the rate prescribed therefor in such
Securities, such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Securities of
such series in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and premium, if any,
and interest, if any, with interest upon the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the Trustee and
to the extent permitted by law) upon overdue installments of interest at the
rate prescribed therefor in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such principal and
any premium and interest, without preference or priority of principal over
interest, or of interest over principal or premium, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of such
principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
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507. Limitation on Suits
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) (a) in the case of an Event of Default described under subparagraph
(1) or (2) of Section 501 above, the Holders of at least 33% in
aggregate principal amount of the Outstanding Securities of that
series, or (b) in the case of any other Event of Default, the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 90-day period by the Holders of a majority
in principal amount of the outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
Subject to Section 507, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 311) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Company, the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
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510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient by the Trustee or by the Holders, as the case
may be.
512. Control by Holders
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the action so directed would not be prejudicial to Holders of any
other series of Outstanding Securities not taking part in such action;
provided, further, that the Trustee shall be under no obligation to
determine whether any such direction shall be so prejudicial.
513. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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514. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant in such suit,
but the provisions of this Section 514 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of or interest, if any, on any Security on or after
the Stated Maturity or Maturities expressed in such Security.
ARTICLE VI
THE TRUSTEE
601. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the same to
determine whether or not they conform to the requirements of
this Indenture.
(b) In case a default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
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(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
the Trustee was negligent in ascertaining the pertinent facts;
(3) no provision of this Indenture shall require the
Trustee to spend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if repayment of such funds or adequate indemnity against such
risk or liability satisfactory to the Trustee has not been
assured to it; and
(4) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than
a majority in principal amount of the Outstanding Securities
of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct of, or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 601.
602. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or a Responsible Officer of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
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603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection, and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk
its own funds or to exercise, at the request or direction of any of the Holders,
any of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
upon reasonable prior request and during normal business hours to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and shall not be liable for the actions or omissions of such
agents appointed by it with due care.
604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent nor any party
hereto (other than the Company) assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent nor any party hereto (other than the Company) shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
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605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Exchange Agent/Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Exchange Agent/Registrar or such other agent.
606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is
agreed upon in writing, which compensation shall not be limited by any
provision of law regarding compensation of the trustee of an express
trust;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel, which
compensation, expenses and disbursements shall be set forth in
sufficient written detail to the satisfaction of the Company), except
any such expense, disbursement or advance as may be attributable to its
or their negligence or bad faith; and
(3) to indemnify each of the Trustee, its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith, or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. Obligations under this Section 607(3) will survive
the satisfaction and discharge of this Indenture pursuant to Section
401 hereof.
608. Disqualification; Conflicting Interests
If the Trust Indenture Act shall be applicable to a series of
Securities issued hereunder and the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, then the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
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609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be eligible
to act as trustee under the Trust Indenture Act and which shall have a combined
capital and surplus of at least $50,000,000. If the Trustee does not have an
office in The City of New York, the Trustee may appoint an agent in The City of
New York reasonably acceptable to the Company to conduct any activities which
the Trustee may be required under this Indenture to conduct in The City of New
York. If the Trustee does not have an office in The City of New York or has not
appointed an agent in The City of New York, the Trustee shall be a Participant
in DTC and in the FAST distribution systems. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a United States federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 609,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
610. Resignation and Removal; Appointment of Successor Trustee
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series, subject to Section 609.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days of such
removal, the Trustee subject to such removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series, subject to Section 609.
(d) If at any time:
(1) the Trustee shall fail to comply with section
310(b) of the Trust Indenture Act pursuant to Section 608,
with respect to any series of Securities to which the Trust
Indenture Act may be applicable, after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
~herefore by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company and
accepted appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by giving notice in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
612. Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
613. Preferential Collecting of Claims Against Company
(a) Subject to subsection (b) of this Section 613, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section 613, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in subsection (c) of this Section 613:
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(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest effected after the beginning
of such three months' period and valid as against the Company
and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in
paragraph (2) of this subsection (a), or from the exercise of
any right of set-off which the Trustee could have exercised if
a petition in bankruptcy had been applied by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect
of any claims as such creditor, either as security therefor,
or in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount equal
to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i)
payments made on account of any such claim by any
Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale
of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon
any property held by it as security for any such
claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but
only to extent of the claim hereinafter mentioned,
upon any property held by it as security for any such
claim, if such claim was created after the beginning
of such three months' period and such property was
received as security therefor simultaneously with the
creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property
was so received the Trustee had no reasonable cause
to believe that a default, as defined in subsection
(c) of this Section 613, would occur within three
months; or
(D) to receive payment on any claim referred
to in paragraph (B) or (C) of this Section 613,
against the release of any property held as security
for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D) of this Section 613,
property substituted after the beginning of such three months' period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose of
repaying or refunding any preexisting claim of the Trustee as such creditor,
such claim shall have the same status as such pre-existing claim.
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If the Trustee shall be required to account for the funds and property
held in such special account, the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law or winding up or administration pursuant
to the insolvency laws of the United Kingdom, as applicable, the same percentage
of their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law or winding up or administration pursuant to the insolvency
laws of the United Kingdom, as applicable, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law or winding up or administration
pursuant to the insolvency laws of the United Kingdom, as applicable, whether
such distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Section 613
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depository, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of
a corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
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(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in subsection (c) of this
Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make
payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section 613, and (iii) under which a default exists at
the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Code or Title 11 of the United States Code.
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614. Authenticating Agents
From time to time the Trustee, with the prior written approval of the
Company, may appoint one or more Authenticating Agents with respect to one or
more series of Securities with power to act on the Trustee's behalf and subject
to its direction in the authentication and delivery of Securities of such series
issued upon original issuance and upon exchange, registration of transfer or
partial redemption thereof or in connection with transfers and exchanges under
Sections 305, 306, 310 and ll07 as fully to all intents and purposes as though
the Authenticating Agent had been expressly authorized by those Sections of this
Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture, the authentication and delivery of Securities by an
Authenticating Agent pursuant to this Section 614 shall be deemed to be
authentication and delivery of such Securities "by the Trustee". Each such
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section 614 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from, any merger
or consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 614, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 614, the
Trustee may appoint a successor Authenticating Agent with the prior written
approval of the Company and shall mail notice of such appointment to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve, as the names and addresses of such Holders appear on the Security
Register. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614 as may be
agreed in a separate writing among the Company, the Trustee and such
Authenticating Agent, and the Trustee shall be entitled to be reimbursed for
such payments pursuant to Section 607.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
[NAME OF AUTHENTICATING
AGENT],
as Authenticating Agent
Dated:__________ By: __________________________________
Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
701. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee with
respect to the Registered Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Registered Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders as
of such Regular Record Date or semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee is Security Exchange
Agent/Registrar for any series of Registered Securities, no such list shall be
required to be furnished with respect to any such series.
702. Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Exchange Agent/Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
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(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable, by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b).
703. Reports by Trustee
(a) Within 60 days after the initial Regular Record Date of
each calendar year, commencing in 1998, the Trustee shall transmit by mail to
all Holders of Securities a brief report dated as of such date, of such year
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609
and its qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in Section 608;
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(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement
of which it claims or may claim a lien or charge, prior to
that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than one-half
of one percent of the principal amount of the Securities
outstanding on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee in
its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any additional issue of Securities which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee
in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Securities a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to subsection (a) of this Section 703 (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the securities outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each US stock exchange
upon which any Securities are listed and with the Company. The Company will
notify the Trustee when any Securities are listed on any US stock exchange.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
801. Company May Consolidate, Etc., Only on Certain Terms
Nothing contained in this Indenture shall prevent the Company from
consolidating with or merging into another corporation or conveying,
transferring or leasing its properties and assets substantially as an entirety
to any person, provided that (a) the successor entity expressly assumes, by an
amendment to the Indenture and the Securities of each series then Outstanding,
all of the Company's obligations under the Indenture and on the Securities and
(b) immediately after giving effect to such transaction no Event of Default and
no event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing.
In the event that any such successor entity is organized under the laws
of a country located outside of the United Kingdom and withholding or deduction
is required by law for or on account of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within such country in which the successor
entity is organized or by or within any political subdivision thereof or any
authority therein or thereof having power to tax, the successor entity shall pay
to the relevant Holder of the Global Securities or to the relevant Holders of
the definitive Registered Securities, as the case may be, such additional
amounts, under the same circumstances and subject to the same limitations as are
specified for "United Kingdom Taxes," as is set forth under Section 1009 herein,
but substituting for the United Kingdom in each place the name of the country
under the laws of which such successor entity is organized. In addition such
successor entity shall be entitled to effect optional tax redemptions under the
same circumstances and subject to the same limitations as are set forth under
Section 1108 herein, but substituting for the United Kingdom in each place the
name of the country under the laws of which such successor entity is organized.
802. Successor Corporation to be Substituted
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
901. Supplemental Indenture without Consent of Holders
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to facilitate the
issuance of Securities in uncertificated form, or to permit or
facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective
only as to the Securities of any series created by such supplemental
indenture and Securities of any series subsequently created to which
such change or elimination is made applicable by the subsequent
supplemental indenture creating such series;
(6) to secure the Securities pursuant to the requirements of Section
1004 or otherwise;
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b);
(9) to provide for any rights of the Holders of Securities of any
series to require the repurchase of Securities of such series by the
Company;
(10) to modify the restrictive legends set forth on the face of the
form of Security in Section 202 or as are otherwise set forth pursuant
to Section 201 and 301, or modify the form of certificate set forth in
Section 311; provided, however, that any such modification shall not
materially and adversely affect the interest of the Holders of the
Securities; or
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(11) to amend this Indenture to conform to the provisions of the Trust
Indenture Act as in effect at the time of the execution of such
supplemental indenture; or
(12) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not materially and
adversely affect the interests of the Holders of Securities of any
series; or
(13) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to Holders, which does not
involve a change described in clauses (1), (2) or (3) of Section 902
hereof and which, in the judgment of the Trustee, is not to the
prejudice of the Trustee, or in order to provide for the duties,
responsibilities and compensation of the Trustee as a transfer agent in
the event one registered Security of any series is issued in the
aggregate principal amount of all outstanding Securities of such series
in which Holders will hold an interest.
902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest, if any, on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change any
obligation of the Company to pay Additional Amounts, if any, or reduce
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
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(3) modify any of the provisions of this Section 902, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall,
if so required by the Trust Indenture Act, conform to the requirements of the
Trust Indenture Act as then in effect.
906. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE X
COVENANTS
1001. Payment of Principal, Premium, if any, and Interest
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. An installment of principal of or
interest on the Securities of a series shall be considered paid on the date it
is due if the Trustee or Paying Agent holds at 11:00 a.m. New York City Time on
that date money deposited by the Company in immediately available funds and
designated for, and sufficient to pay, the installment in full.
Neither the Company nor any agent of the Company (including but not
limited to the Paying Agent) will have any responsibility or liability for any
aspect relating to payments made or to be made by the Book-Entry Depositary to
DTC in respect of the Global Securities of a series or the Book-Entry Interests
therein, subject only to limited indemnification rights of the Book-Entry
Depository set forth in the Deposit Agreement. None of the Company, the Trustee,
the Paying Agent, the Book-Entry Depositary or any agent of any of the foregoing
will have any responsibility or liability for any aspect relating to payments
made or to be made by DTC on account of a Participant's or Indirect
Participant's ownership of a beneficial interest in a Book-Entry Interest or for
maintaining, supervising or reviewing any records relating to a Participant's
interests in the Book-Entry Interest.
1002. Maintenance of Office or Agency
The Company will maintain (i) in the Borough of Manhattan, The City of
New York, an office or agency where Securities of any series may be presented or
surrendered for payment, and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served and if
definitive Registered Securities have been issued, an office or agency of a
Security Exchange Agent/Registrar and Transfer Agent in such Place of Payment
where Securities may be surrendered for registration of transfer or exchange,
and (ii) an office or agency of a Paying Agent where the Securities may be paid
and if Definitive Registered Securities have been issued, an office or agency of
a Security Exchange Agent/Registrar and Transfer Agent in such Place of Payment
where Securities may be surrendered for registration of transfer or exchange, in
Luxembourg so long as the Securities are listed on the Luxembourg Stock Exchange
and the rules of such exchange so require. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series may be presented at the place specified for that
purpose pursuant to Section 301, and the Company hereby appoints the Paying
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
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The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the
Securities of one or more series and any appurtenant coupons may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for any series of Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such other office or agency.
The Company will at all times maintain at least one Paying Agent which is
located outside the United Kingdom for each series of Securities.
1003. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, no later than 10:00 a.m. New York City Time, on
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum in immediately
available funds sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series in
trust for the benefit of the Pewns entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or by any Paying Agent
to the Trustee, the Company or such Paying Agent, as the case may be, shall be
released from all further liability with respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
1004. Limitation on Liens
If this covenant shall be made applicable to the Securities of a
particular series, neither the Company nor any Significant Subsidiary shall
issue, assume or guarantee any Indebtedness secured by a Lien upon any property
or assets (other than cash or cash equivalents) of the Company or any such
Significant Subsidiary, as applicable, without effectively providing that the
Outstanding Securities (together with, if the Company so determines, any other
indebtedness or obligation then existing or thereafter created ranking equally
with such Securities) shall be secured equally and ratably with (or prior to)
such Indebtedness so long as such Indebtedness shall be so secured. The
foregoing restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such
Securities;
(b) any Lien created or arising over any property which is
acquired, constructed or created by the Company or any of its
Significant Subsidiaries, but only if (a) such Lien secures only
principal amounts (not exceeding the cost of such acquisition,
construction or creation) raised for the purposes of such acquisition,
construction or creation, together with any costs, expenses, interest
and fees incurred in relation thereto or a guarantee given in respect
thereof, (B) such Lien is created or arises on or before 180 days after
the completion of such acquisition, construction or creation and (C)
such Lien is confined solely to the property so acquired, constructed
or created;
(c) any Lien securing amounts not more than 180 days overdue
or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit
balances in connection with the operation of cash management programs
established for the benefit of the Company and/or a Significant
Subsidiary or in connection with the issuance of letters of credit for
the benefit of the Company and/or a Significant Subsidiary; (ii) any
Lien securing indebtedness of the Company and/or a Significant
Subsidiary incurred in connection with the financing of accounts
receivable; (iii) any Lien incurred or deposits made in the ordinary
course of business, including, but not limited to, (a) any mechanics',
materialmen's, carriers', workmen's, vendors' or other like Liens and
(B) any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social
security; (iv) any Lien upon specific items of inventory or other goods
and proceeds of the Company and/or a Significant Subsidiary securing
obligations of the Company and/or a Significant Subsidiary in respect
of bankers' acceptances issued or created for the account of such
person to facilitate the purchase, shipment or storage of such
inventory or other goods; (v) any Lien incurred or deposits made
securing the performance of tenders, bids, leases, trade contracts
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(other than for borrowed money), statutory obligations, surety bonds,
appeal bonds, government contracts, performance bonds, return-of-money
bonds, letters of credit not securing borrowings and other obligations
of like nature incurred in the ordinary course of business; (vi) any
Lien created by the Company or a Significant Subsidiary under or in
connection with or arising out of any pooling and settlement agreements
or pooling and settlement arrangements of the electricity industry,
including without limitation the Pooling and Settlement Agreement dated
March 30, 1990, as amended, modified or supplemented from time to time,
or any transactions or arrangements entered into in connection with
hedging or management of risks relating to the electricity industry;
(vii) any Lien constituted by a right of set off or right over a margin
call account or any form of cash or cash collateral or any similar
arrangement for obligations incurred in respect of Currency or Interest
Rate Agreements; (viii) any Lien arising out of title retention or like
provisions in connection with the purchase of goods and equipment in
the ordinary course of business; (ix) any Lien securing reimbursement
obligations under letters of credit, guaranties and other forms of
credit enhancement given in connection with the purchase of goods and
equipment in the ordinary course of business; and (x) any Lien securing
obligations under Currency or Interest Rate Agreements;
(e) Liens in favor of the Company or a Subsidiary;
(f) (i) Liens on any property or assets acquired from a
corporation which is merged with or into the Company or a Significant
Subsidiary, or any Liens on the property or assets of any corporation
or other entity existing at the time such corporation or other entity
becomes a Subsidiary of the Company and, in either such case, is not
created in anticipation of any such transaction (unless such Lien is
created to secure or provide for the payment of any part of the
purchase price of such corporation); (ii) any Lien on any property or
assets existing at the time of acquisition thereof and which is not
created in anticipation of such acquisition (unless such Lien was
created to secure or provide for the payment of any part of the
purchase price of such property or assets); and (iii) any Lien created
or outstanding on or over any asset of any company which becomes a
Significant Subsidiary on or after the date of the issuance of such
Securities where such Lien is created prior to the date on which such
company becomes a Significant Subsidiary;
(g) (i) Liens required by any contract or statute in order to
permit the Company or a Significant Subsidiary to perform any contract
or subcontract made by it with or at the request of a governmenta1
entity or any department, agency or instrumentality thereof, or to
secure partial, progress, advance or any other payments by the Company
or a Significant Subsidiary to such governmental unit pursuant to the
provisions of any contract or statute; (ii) any Lien securing
industrial revenue, development or similar bonds issued by or for the
benefit of the Company or a Significant Subsidiary, provided that such
industrial revenue, development or similar bonds are nonrecourse to the
Company and/or such Significant Subsidiary; and (iii) any Lien securing
taxes or assessments or other applicable governmental charges or
levies;
(h) (i) any Lien which arises pursuant to any order of
attachment, distraint or similar legal process arising in connection
with court proceedings and any Lien which secures the reimbursement
obligation for any bond obtained in connection with an appeal taken in
any court proceeding, so long as the execution or other enforcement of
such Lien arising pursuant to such legal process is effectively stayed
and the claims secured thereby are being contested in good faith and,
if appropriate, by appropriate legal proceedings, or any Lien in favor
of a plaintiff or defendant in any action before a court or tribunal as
security for costs and/or other expenses; or (ii) any Lien arising by
operation of law or by order of a court or tribunal or any Lien arising
by an agreement of similar effect, including but not limited to
judgment Liens;
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(i) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Liens referred to in the foregoing clauses, for amounts not exceeding
the principal amount of the Indebtedness secured by the Lien so
extended, renewed or replaced, provided that such extension, renewal or
replacement Lien is limited to all or a part of the same property or
assets that were covered by the Lien extended, renewed or replaced
(plus improvements on such property or assets);
(j) any Lien created in connection with Project Finance
Indebtedness; and
(k) any Lien created in connection with a customary
receivables securitization program.
Notwithstanding the foregoing, the Company and/or a Significant
Subsidiary may create or permit to subsist Liens over any of their respective
property or assets, so long as the aggregate amount of Indebtedness secured by
all such Liens (excluding therefrom the amount of Indebtedness secured by Liens
set forth in clauses (a) through (k), inclusive, above) does not exceed 10% of
Consolidated Net Tangible Assets.
Nothing contained in this Indenture in any way restricts or prevents
the Company or any Subsidiary from incurring any unsecured indebtedness.
1005. Limitation on Distributions
If this covenant shall be made applicable to the Securities of a
particular series, the Company covenants and agrees that so long as any
Securities of that series remain outstanding the Company shall not declare,
recommend, make or pay any Distribution to any of its shareholders unless there
exists no Event of Default and no such Event of Default will result from the
making of such Distribution and either:
(a) at the time and as a result of such Distribution, the
Company's Leverage Ratio does not exceed 0.62:1 and the
Company's Interest Coverage Ratio is not less than 2.2:1; or
(b) (if the Company is not in compliance with the foregoing
ratios) at such time its senior long term debt rating from the
Rating Agencies is at least BBB (or its then equivalent) with
S&P and DCR and Baa2 (or its then equivalent) with Moody's.
The foregoing restriction on Distributions shall no longer apply in the
event that the Company obtains confirmation from each of S&P, DCR and Moody's
that its long term senior debt would be rated BBB+ (or its then equivalent) in
the case of S&P and DCR and Baa1 (or its then equivalent) in the case of
Moody's, or better, notwithstanding the release of the Company from its
obligations thereunder. If the restriction on Distributions ceases to apply by
virtue of the Company obtaining the foregoing confirmation with respect to its
credit ratings, the Company will be under no obligation to reinstate such
restriction or otherwise observe its terms in the event such ratings are
thereafter lowered or withdrawn.
In order to obtain the release of the restriction on Distributions, the
Company shall deliver to the Trustee written confirmation from each Rating
Agency of the ratings conditions as described in the preceding paragraph.
Securities of any series which are entitled to the benefit of this Section 1005
authenticated and delivered after the release of the restriction on
Distributions (or any reinstatement thereof) may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to the current
applicability of such restriction.
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1006. Statement by Officers as to Default
The Company will give the Trustee notice by facsimile or other written
communication satisfactory to the Trustee of any Event of Default relating to
the Company or of any condition or event which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default relating to the
Company within five (5) days after the occurrence of such Event of Default
becomes known to the Company, and of the measures it is taking to remedy such
Event of Default.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year of the Company a certificate from a Director of the Company
or, in the case of a Director which is not a natural person, from an officer or
other duly authorized designee of such Director, stating that in the course of
the performance by such signer of his duties as a Director of the Company (or as
an officer or designee thereof) he would normally have knowledge of any default
by the Company in the performance and observance of any of the covenants
contained in the Indenture, stating whether or not he has knowledge of any such
default without regard to any period of grace or requirement of notice and, if
so, specifying each such default of which such signer has knowledge and the
nature thereof.
1007. Modification or Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in this Indenture with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either modify the covenant or
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, provided that no such modification shall without
the consent of each Holder of Outstanding Securities of such series (a) change
the stated maturity upon which the principal of or the interest on the
Securities of such series is due and payable, (b) reduce the principal amount
thereof or the rate of interest thereon, (c) change any obligation of the
Company to pay Additional Amounts with respect to Securities of such series, (d)
change any place of payment or the currency in which the Securities of such
series or any premium or the interest thereon is payable, (e) impair the right
to institute suit for the enforcement of any such payment on or after the stated
maturity thereof (or, in the case of redemption, on or after Redemption Date) or
(f) reduce the percentage in principal amount of the outstanding Securities of
such series, the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture. The Securities
owned by the Company or any of its Subsidiaries shall be deemed not to be
Outstanding for, among other purposes, consenting to any such modification.
1008. Further Assurances
The Company and the Trustee shall execute and deliver all such other
documents, instruments and agreements and do all such other acts and things as
may be reasonably required to enable the Trustee to exercise and enforce its
rights under this Indenture and under the documents, instruments and agreements
required under this Indenture and to carry out the intent of this Indenture.
1009. Payment of Additional Amounts
If the Securities of a particular series provide for payment of
Additional Amounts, all payments of principal and interest (including payments
of discount and premium, if any) in respect of the Securities of such series
shall be made free and clear of, and without withholding or deduction for or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or assessed by
or within the United Kingdom or by or within any political subdivision thereof
or any authority therein or thereof having power to tax ("United Kingdom
Taxes"), unless such withholding or deduction is required by law. In the event
of any such withholding or deduction, the Company shall pay to the relevant
Holders such additional amounts ("Additional Amounts") as will result in the
payment to such Holders of the amount that would otherwise have been receivable
by such Holders in the absence of such withholding or deduction, except that no
such Additional Amounts shall be payable:
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(a) to, or to a Person on behalf of, a Holder who is liable
for such United Kingdom Taxes in respect of Securities by reason of such Holder
(or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a
power over such Holder, if such Holder is an estate, trust, partnership or
corporation) having some connection with the United Kingdom (including but not
limited to being a citizen or resident or national or domiciliary of, or
carrying on a trade or business or maintaining a permanent establishment in, or
being physically present in, the United Kingdom) other than the mere holding of
a Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents a
Security (where presentation is required) for payment more than 30 days after
the Relevant Date except to the extent that such Holder would have been entitled
to such Additional Amounts on presenting such Security for payment on the last
day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a
Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a declaration of
non-residence or similar claim for exemption to the relevant tax authority or
who fails to comply with any other certification, filing, identification,
information or other reporting requirements if such is a precondition to
exemption from, or the reduction in the rate of, deduction or withholding of
United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal
property taxes or any similar taxes, duties, assessments or other governmental
charges; or
(f) to, or to a Person on behalf of, a Holder in respect of
any definitive Registered Security issued pursuant to an Optional Definitive
Security Request.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Security (or any interest therein) been the Holder of
the Security, he would not have been entitled to payment of Additional Amounts
by reason of any one or more of clauses (a) through (f) above. If the Company
shall determine that Additional Amounts will not be payable because of the
immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
Reference to principal, interest, discount or premium in respect of the
Securities shall be deemed also to refer to any Additional Amounts which may be
payable as set forth in this Indenture or in the Securities.
At least 10 Business Days prior to the first Interest Payment Date (and
at least 10 Business Days prior to each succeeding Interest Payment Date if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate) the Company will furnish to the Trustee
and the Paying Agents an Officers' Certificate instructing the Trustee and the
Paying Agents whether payments of principal of or interest on the Securities due
on such Interest Payment Date shall be without deduction or withholding for or
on account of any United Kingdom Taxes. If any such deduction or withholding
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shall be required, prior to such Interest Payment Date the Company will furnish
the Trustee and the Paying Agents with an Officers' Certificate which specifies
the amount, if any, required to be withheld on such payment to Holders and
certifies that the Company shall pay such withholding or deduction. The Company
covenants to indemnify the Trustee for, and to hold the Trustee harmless
against, any loss, liability or expense reasonably incurred without negligence,
willful misconduct or bad faith on the Trustee's part, arising out of or in
connection with actions taken or omitted by the Trustee in reliance on any
Officers' Certificate furnished pursuant to this paragraph. Any Officers'
Certificate required by this Section 1009 to be provided to the Trustee and any
Paying Agent shall be deemed to be duly provided if telecopied to the Trustee
and such Paying Agent.
The Company shall furnish to the Trustee the official receipts (or a
certified copy of the official receipts) evidencing payment of United Kingdom
Taxes. Copies of such receipts shall be made available to the Holders of the
Securities upon request.
1010. Copies Available to Holders
Copies of this Indenture shall be available for inspection by the
Holders on a Business Day during normal business hours at the principal office
of the Company and at the Corporate Trust Office. In addition, if the Securities
of any series are listed on the London Stock Exchange, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, copies of this Indenture, the Deposit
Agreement, the Letter of Representations, the memorandum and articles of
association of the Company and the most recent publicly available annual report
of the Company shall be made available for inspection by the Holders of such
Securities on a Business Day during normal business hours at the offices of the
paying agents and at the office of the listing agent required to be maintained
by such exchange for so long as the Securities of such series are outstanding
and are listed on such stock exchange.
1011. Reports by Company
If the Company becomes subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, then the Company shall file with the Trustee,
and the Trustee shall provide Holders, within 15 days after it files them with
the Commission, copies of its annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
As long as the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, nor is exempt from reporting pursuant
to Rule 12g3-2(b) under the Exchange Act and the Securities of any series are
"restricted securities" within the meaning of Rule 144 under the Securities Act,
upon the request of a Holder or any holder of a beneficial interest in a
Book-Entry Interest in a Global Security, the Company shall promptly furnish or
cause to be furnished "Rule 144A Information" (as defined herein) to such Holder
or holder of a beneficial interest in a Book-Entry Interest in a Global Security
or to a prospective purchaser of such Security designated by such Holder or
holder of a beneficial interest in a Book-Entry Interest in a Global Security in
order to permit compliance with Rule 144A. "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act.
1012. Resale of Restricted Securities by the Company
Except as otherwise provided pursuant to Section 301 or pursuant to a
supplemental indenture entered into pursuant to Article Nine hereof, beginning
from the original issue date with respect to the Senior Notes of each series
through the time period referred to in Rule 144(k) under the Securities Act, the
Company will not, and will not permit any of its "affiliates" (as defined under
Rule 144 under the Securities Act) to, resell any Senior Notes of such series
which constitute "restricted securities" under Rule 144 otherwise than pursuant
to an effective registration statement under the Securities Act.
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ARTICLE XI
REDEMPTION OF SECURITIES
1101. Applicability of Article
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified in or contemplated by Section 301 for Securities of any
series) in accordance with this Article Eleven.
1102. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or pursuant to an election by the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
1103. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed, the
particular securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions equal to the minimum authorized denomination for
Securities of that series (or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by certificate number in a written statement
signed by an authorized officer of the Company and delivered to the Security
Exchange Agent/Registrar at least 45 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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1104. Notice of Redemption
Notice of redemption shall be given not less than 30 days nor more than
60 days prior to the Redemption Date to each Holder of Securities to be redeemed
in accordance with Section 106.
All notices of redemption shall include the CUSIP number and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
1105. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Principal Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in same day funds sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date (to the
extent that such amounts are not already on deposit at such time in accordance
with the provisions of Sections 401, 402 or 1007).
1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued and
unpaid interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, and in the case of Registered Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 306.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
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1107. Securities Redeemed in Part
Any Security (including any Global Security) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee upon written direction shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the security so surrendered;
provided, that if a Global Security is surrendered for partial redemption, no
new Global Security shall be issued but instead the principal amount of the
surrendered Global Security shall be reduced by an endorsement to Schedule A to
such Global Security by the Security Exchange Agent/Registrar equal to the
redeemed portion of the principal of the Global Security so surrendered,
whereupon such Global Security shall be delivered to the Book-Entry Depository;
and provided further that following any such partial redemption the Securities
selected for redemption and any beneficial interests therein shall not have had
their principal amount reduced below the minimum authorized denomination for
Securities of such series and for any beneficial interests therein. In the case
of a partial redemption of the Global Securities, DTC (and, in turn, its
Participants) shall have the responsibility to select the interests in the
Book-Entry Interest in such Global Securities to be redeemed in accordance with
Applicable Procedures.
1108. Optional Redemption in the Event of Change in United Kingdom Tax
Treatment
The Securities of any series may be redeemed at the election of the
Company, as a whole, but not in part, by the giving of notice as provided in
Section 1104, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date, if: (a) the Company has or will become obligated to pay
Additional Amounts on the Securities of such series, as a result of either (x)
any change in, or amendment to, the laws or regulations of the United Kingdom or
any political subdivision or any authority or agency thereof or therein having
power to tax or levy duties, or any change in the application or interpretation
of such laws or regulations, which change or amendment becomes effective on or
after the date of the relevant underwriting or purchase agreement for the
Securities of such series, or (y) the issuance of definitive Registered
Securities at any time because (i) of an Optional Definitive Security Request,
(ii) DTC notifies the Company and the Book-Entry Depositary that it is unable or
unwilling to continue to hold the Book-Entry Interest or DTC at any time ceases
to be a "clearing agency" registered as such under the Exchange Act and, in
either case, a successor is not appointed by the Company within 120 days; (iii)
while the Global Security is subject to the transfer restrictions set forth in
the legend hereon, the Book-Entry Interests cease to be eligible for DTC
services because the Securities of such series are neither rated in one of the
top four categories by a nationally recognized statistical rating organization
nor included within a Self-Regulatory Organization system approved by the
Commission for the reporting of quotation and trade information of securities
eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv)
the Book-Entry Depositary notifies the Company that it is unwilling or unable to
continue as Book-Entry Depositary with respect to the Securities of such series,
and no successor is appointed by the Company within 120 days; and (b) such
obligation cannot be avoided by the Company taking reasonable measures available
to it; provided, that, (i) no notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Company would be obligated to
pay such Additional Amounts were a payment in respect of the Securities then
due; and (ii) prior to the giving of any such notice of redemption the Company
shall deliver to the Trustee an opinion of independent legal counsel of
recognized standing addressed to the Company stating that the Company is
entitled to effect such redemption, and an Officers' Certificate stating that
the obligation to pay such Additional Amounts cannot be avoided by the Company
taking reasonable measures available to it.
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ARTICLE XII
SINKING FUNDS
1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
1202. Satisfaction of Sinking Fund Payments with Securities
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 313, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 1202, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Company through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund Redemption Price specified in such
Securities.
1203. Redemption of Securities for Sinking Fund
Not less than 30 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying (a) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (b) whether or not the
Company intends to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking fund payment
date and, if so, the amount of such optional sinking fund payment, and (c) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and will also deliver to the
Trustee any Securities to be so delivered. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 30th day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
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Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
The Trustee shall not redeem or cause to be redeemed any Security of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
default in payment of interest with respect to Securities of that series or an
Event of Default with respect to the Securities of that series except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513 or
the default or Event of Default cured on or before the 30th day preceding the
sinking fund payment date, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section 1203 to the
redemption of such Securities.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
1301. Purposes of Meeting
A meeting of the Holders may be called at any time from time to time
pursuant to this Article Thirteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to consent
to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to
Article Nine hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to
Article Six hereof;
(3) to consent to the execution of an indenture supplemental hereto
pursuant to Section 902 hereof.
1302. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days'
notice) call a meeting of Holders to be held at such time and at such place in
the location determined by the Trustee pursuant to this Section 1302 hereof.
Notice of every meeting of Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to each Holder and published in the manner contemplated by
Section 106 hereof.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of the Holders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first giving of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time (not less than 21 days after notice is given) and the place
in the location determined by the Company or the Holders pursuant to this
Section 1302 for such meeting and may call such meeting to take any action
authorized in Section 1301 hereof by giving notice thereof as provided in
Section 1302(a) hereof.
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1303. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (i)
a Holder or (ii) a Person appointed by an instrument in writing as proxy for a
Holder or Holders by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons so entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel, and any representatives of the
Company and its counsel.
1304. Voting Rights, Conducts and Adjournment
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to proof of the holding of Securities of a
series and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities of a series shall be proved in the manner specified in Article Two
hereof and the appointment of any proxy shall be proved in such manner as is
deemed appropriate by the Trustee or by having the signature of the person
executing the proxy witnessed or guaranteed by any bank, banker or trust company
customarily authorized to certify to the holding of a security such as a Global
Note.
(b) At any meeting of Holders, the representative of Persons
holding or representing Securities of a series in an aggregate principal amount
sufficient under the appropriate provision of this Indenture to take action upon
the business for the transaction of which such meeting was called shall
constitute a quorum. Any meetings of Holders duly called pursuant to Section
1303 hereof may be adjourned from time to time by vote of the Holders (or
proxies for the Holders) of a majority of the Securities of a series represented
at the meeting and entitled to vote, whether or not a quorum shall be present;
and the meeting may be held as so adjourned without further notice. No action at
a meeting of Holders shall be effective unless approved by Persons holding or
representing Securities of a series in the aggregate principal amount required
by the provision of this Indenture pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be
entitled to one vote for each $1,000 principal amount of outstanding Securities
of a series held or represented.
1305. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing to the Trustee of
the taking of any action at a meeting of Holders by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal corporate trust office and upon proof of holding as provided herein,
revoke such consent so far as concerns such Securities. Except as aforesaid any
such consent given by the Holder of any Securities shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Securities and of any Securities issued in exchange therefore, in lieu thereof
or upon transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon such Securities. Any action taken by the Holders of the
percentage in aggregate principal amount of the Holders specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Securities.
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ARTICLE XIV
MISCELLANEOUS
1401. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process
(a) The Company irrevocably consents and agrees, for the
benefit of the Holders from time to time of the Securities and the Trustee, that
any legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Indenture or the Securities may be brought in the United States District Court
for the Southern District of New York or in the Supreme Court of New York in New
York County, and, until amounts due and to become due in respect of the
Securities have been paid, hereby irrevocably consents and submits to the
nonexclusive jurisdiction of each such court and any appellate court of either
of them in personam, generally and unconditionally with respect to any action,
suit or proceeding for itself and in respect of its properties, assets and
revenues.
(b) The Company hereby designates, appoints, and empowers CT
Corporation System, acting through its office at 1633 Broadway, New York, New
York 10019, as the Company's designee, appointee and agent (the "Authorized
Agent") to receive, accept and acknowledge for and on its behalf, and its
properties, assets and revenues, service of any and all legal process, summons,
notices and documents which may be served in any action, suit or proceeding
brought against the Company pursuant to paragraph (a) of this Section. Such
appointment shall be irrevocable until all amounts in respect of the principal
of and any premium and interest due and to become due on or in respect of all
the Securities issued under this Indenture have been paid by the Company to the
Trustee pursuant to the terms hereof and of the Securities. Notwithstanding the
foregoing, the Company reserves the right to appoint another Person satisfactory
to the Trustee and located or with an office in the Borough of Manhattan, The
City of New York, as a successor Authorized Agent, and upon acceptance of such
appointment by such a successor the appointment of the prior Authorized Agent
shall terminate. The Company shall give notice to the Trustee and all Holders of
the appointment by it of a successor Authorized Agent. If for any reason CT
Corporation System ceases to be able to act as the Authorized Agent or to have
an address in the Borough of Manhattan, The City of New York, the Company will
appoint a successor Authorized Agent in accordance with the two preceding
sentences. The Company further agrees to take any and all action, including the
filing of any and all documents and instruments as may be necessary to continue
such designation and appointment of such agent in full force and effect until
this Indenture has been satisfied and discharged in accordance with Article Four
hereof. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
action, suit or proceeding against the Company by serving a copy thereof upon
the relevant agent for service of process referred to in this Section 1401
(whether or not the appointment of such agent shall for any reason prove to be
106
ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail, postage prepaid, to
the Company at its address specified in or designated pursuant to this
Indenture. The Company agrees that the failure of any such designee, appointee
and agent to give any notice of such service to it shall not impair or affect in
any way the validity of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be deemed to limit the
ability of the holders of the Securities and the Trustee, to serve any such
legal process, summons, notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over the Company or bring actions,
suits or proceedings against the Company in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The Company irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in connection with
this Indenture brought in the United States District Court for the Southern
District of New York or in the Supreme Court of New York in New York County, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
If for the purpose of obtaining judgment in any Court it is necessary
to convert a sum due hereunder to the holder of any Security from US dollars
into another currency, the Company has agreed, and each holder by holding such
Security will be deemed to have agreed, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures such Holder could purchase US dollars
with such other currency in The City of New York on the Business Day preceding
the day on which final judgment is given.
The obligation of the Company in respect of any sum payable by it to
the holder of a Security shall, notwithstanding any judgment in a currency (the
"judgment currency") other than US dollars, be discharged only to the extent
that on the Business Day following receipt by the Holder of such security of any
sum, adjudged to be so due in the judgment currency, the Holder of such Security
may in accordance with normal banking procedures purchase US dollars with the
judgment currency; if the amount of US dollars so purchased is less than the sum
originally due to the holder of such Security in the judgment currency
(determined in the manner set forth in the preceding paragraph), the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Holder of such Security against such loss, and if the amount of
the US dollars so purchased exceeds the sum originally due to the Holder of such
Security, such Holder agrees to remit to the Company such excess, provided that
such Holder shall have no obligation to remit any such excess as long as the
Company shall have failed to pay such Holder any obligations due and payable
under such Security, in which case such excess may be applied to such
obligations of the Company under such Security in accordance with the terms
thereof.
1402. Counterparts
This instrument may be executed in any number of Counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers or directors duly authorized thereto,
all as of the day and year first above written.
CE ELECTRIC UK FUNDING COMPANY
By: /s/ Steven A. McArthur
------------------------------------
Name: Steven A. McArthur
Title: Director
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Exchange Agent/Registrar
and Transfer Agent
By: /s/ Thomas E. Tabor
------------------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
BANQUE INTERNATIONALE A
LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
By: /s/ Thomas E. Tabor
------------------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
108
STATE OF NEW YORK )
): SS
COUNTY OF NEW YORK )
On this 12th day of December, 1997, before me personally came
Steven A. McArthur to me known, who, being by me duly sworn, did depose and say
that he is Director and authorized agent of CE Electric UK Funding Company, one
of the companies described in and which executed the foregoing instrument; and
that he signed his name thereto by authority of the Board of Directors of CE
Electric UK Funding Company.
/s/ Ronnell Wilson
109
STATE OF NEW YORK )
): SS
COUNTY OF NEW YORK )
On this _____ day of December, 1997, before me personally
came Thomas E. Tabor to me known, who, being by me duly sworn, did depose and
say that he is an authorized agent of The Bank of New York, one of the companies
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the Board of Directors of said corporation.
110