EXHIBIT 4.2
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FORM OF FIRST SUPPLEMENTAL INDENTURE
dated as of October [__], 1999
to
INDENTURE
dated as of March 2, 1999
between
CE GENERATION, LLC
and
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
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FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of October [__], 1999 (this
"First Supplemental Indenture"), by and between CE GENERATION, LLC, a limited
liability company organized under the laws of the state of Delaware ("CE
Generation"), and CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
(together with its successors in such capacity, the "Trustee").
WITNESSETH:
WHEREAS, CE Generation and the Trustee are parties to the Indenture,
dated as of March 2, 1999, such Indenture, as amended and supplemented by this
First Supplemental Indenture, is referred to herein as the "Indenture";
WHEREAS, pursuant to the Indenture CE Generation has issued
$400,000,000 7.416% Senior Secured Bonds Due December 15, 2018 (the "Initial
Securities"); and
WHEREAS, as contemplated by Section 8.1 of the Indenture and by the
Registration Rights Agreement, CE Generation will effect an Exchange Offer for
the Initial Securities pursuant to which CE Generation will offer to exchange
7.416% Senior Secured Bonds Due December 15, 2018 ("Exchange Securities") for a
like aggregate principal amount of the Initial Securities; and
WHEREAS, Section 8.1 of the Indenture permits CE Generation and the
Trustee to amend the Indenture, without the consent of any of the Holders, by a
supplemental indenture authorized by a resolution of the Board of Directors of
CE Generation filed with, and in a form satisfactory to, the Trustee, to provide
for the issuance of the Exchange Securities;
NOW THEREFORE, in order to establish the designation, form, terms and
provisions of, and to authorize the authentication and delivery of, said
Exchange Securities, and in consideration of the premises and the covenants
herein contained and of the acceptance of said Exchange Securities by the
Holders thereof and of other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, it is mutually covenanted and
agreed, for the benefit of the parties hereto and the equal and proportionate
benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS
For purposes of the Indenture, the following terms shall have the
meanings specified unless the context otherwise requires. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Indenture.
"Authorized Denomination" means (i) with respect to the Initial
Securities, $100,000 or any integral multiple of $1,000 in excess thereof, and
(ii) with respect to any other
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series of Securities, the denomination set forth in the relevant Supplemental
Indenture. In the event of a conflict between the provisions of a Security and
the relevant Indenture provisions, the Indenture provisions shall control.
"Exchange Offer Consummation Date" means the date on which Initial
Securities are exchanged for Exchange Securities pursuant to an Exchange Offer.
"Exchange Securities" means the Securities issued from time to time
with a face in the form of Exhibit A to this First Supplemental Indenture and
with terms and conditions in the form of Exhibit B to this First Supplemental
Indenture.
"Initial Securities" means the Securities issued from time to time with
a face in the form of Exhibit A to the Indenture and with terms and conditions
in the form of Exhibit B to the Indenture.
"Security" or "Securities" means any of the Initial Securities,
Additional Securities and Exchange Securities.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms of Securities. The Exchange Securities shall have
faces substantially as contained in the form of face of Securities set forth in
Exhibit A and shall contain substantially the terms recited in the form of terms
and conditions of Securities set forth in Exhibit B and each Exchange Security
shall have and be subject to such other terms as provided in the Indenture.
SECTION 2.2 Authorization and Terms of the Exchange Securities. (a) The
Exchange Securities to be issued under this First Supplemental Indenture are
hereby created. CE Generation may issue the Exchange Securities with faces in
the form of Exhibit A and with terms and conditions in the form of Exhibit B and
as definitive Securities pursuant to the terms of the Indenture governing
definitive Securities, upon the execution of this First Supplemental Indenture,
and on or prior to the Exchange Offer Consummation Date, CE Generation may
execute and deliver to the Trustee, and upon delivery of a written request by CE
Generation to the Trustee in accordance with the provisions of Section 2.9 of
the Indenture, the Trustee shall authenticate and deliver the Exchange
Securities to be issued in connection with the Exchange Offer. Such CE
Generation order shall specify the amount of the Exchange Securities to be
authenticated and the date on which such Securities are to be authenticated. The
aggregate principal amount of the Exchange Securities together with the Initial
Securities outstanding at any time may not exceed $400,000,000 except as
provided in the Indenture.
(b) The Exchange Securities shall be dated as of the Exchange
Offer Consummation Date, shall be issued in an aggregate principal amount up to
the aggregate principal amount set forth below and shall have a final maturity
date and bear interest as set forth below:
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Interest Rate Maturity Date Principal Amount
------------- ------------- ----------------
7.416% December 15, 2018 $400,000,000
(c) The principal of, premium (if any) and interest on the
Exchange Securities shall be payable in immediately available funds in such coin
or currency of the United States of America which, at the respective dates of
payment thereof, is legal tender for the payment of public and private debts.
Payment of principal of, premium (if any) and interest on the Exchange
Securities shall be made (i) by check or draft drawn on a bank having an office
located in the United States and mailed on the relevant Payment Date to the
registered owner as of the close of business on the Regular Record Date
immediately preceding such Payment Date, at his address as it appears on the
Securities Register or (ii) by wire transfer to such registered owner as of the
close of business on such Regular Record Date upon written notice of such wire
transfer address in the continental United States given not less than fifteen
(15) days prior to such Regular Record Date; provided, however, that if and to
the extent that there shall be a default in the payment of the interest or
principal due on such Payment Date, such defaulted interest, premium (if any)
and/or principal shall be paid to the Holder in whose name any such Security is
registered at the close of business on the Special Record Date determined by the
Trustee as provided in Section 2.4 of the Indenture.
(d) The Exchange Securities will bear interest at the rate of
7.416% per annum from the most recent date on which interest has been paid on
the Initial Securities or, if no interest has been paid on the Initial
Securities, from March 2, 1999. Interest on the Exchange Securities shall be
computed upon the basis of a 360-day year, consisting of twelve (12) thirty (30)
day months.
(e) Except to the extent that principal has been paid on the
Initial Securities prior to the Exchange Offer Consummation Date, principal of
the Exchange Securities shall be paid on the Payment Dates as set forth with
respect to the Exchange Securities on Schedule I hereto. The principal payable
on the Payment Dates on the Exchange Securities shall be equal to the product of
(i) the aggregate principal amount of Initial Securities that are exchanged for
Exchange Securities as of the applicable Regular Record Date divided by the
aggregate principal amount of Initial Securities originally issued by CE
Generation on March 2, 1999, multiplied by (ii) the principal amount payable in
accordance with Schedule I hereto on that date.
(f) The Authorized Denomination with respect to the Exchange
Securities shall be $1,000 or any integral multiple thereof.
SECTION 2.3 Terms of the Initial Securities. Principal of Initial
Securities not exchanged for Exchange Securities shall be paid on the Payment
Dates as set forth with respect to the Initial Securities on Schedule I of the
Indenture. The principal payable on the Payment Dates on the Initial Securities
shall be equal to the product of (i) the aggregate principal amount of the
Initial Securities that are not exchanged for Exchange Securities as of the
applicable Regular Record Date divided by the amount of the Initial Securities
originally issued by CE Generation on March 2, 1999, multiplied by (ii) the
principal amount payable in accordance with Schedule I of the Indenture on that
date.
3
SECTION 2.4 Actions to be Taken. Reference to actions to be taken in
connection with any Securities means to both the Initial Securities and the
Exchange Securities.
SECTION 2.5 Exchange Offer. CE Generation will issue the Exchange
Securities in exchange for a like principal amount of outstanding Initial
Securities tendered and accepted in connection with an Exchange Offer. Holders
may tender their Initial Securities in whole or in part in a principal amount of
$1,000 and integral multiples thereof, provided that if any Initial Securities
are tendered for exchange in part, the untendered principal amount thereof must
be $100,000 or any integral multiple of $1,000 in excess thereof; provided,
however, that the Initial Securities so surrendered for exchange shall be duly
endorsed and accompanied by a letter of transmittal or written instrument of
transfer in form satisfactory to CE Generation, the Trustee and the Registrar,
duly executed by the Holder thereof or his attorney who shall be duly authorized
in writing to execute such document or by means of a message transmitted through
electronic means in form satisfactory to CE Generation. Whenever any Initial
Securities are so surrendered for exchange, CE Generation shall execute, and the
Trustee shall authenticate and deliver to the Registrar, Exchange Securities in
the same aggregate principal amount as the principal amount of Initial
Securities that have been surrendered.
ARTICLE III
ACTS OF HOLDERS
SECTION 3.1 Determination of Voting Rights. For purposes of the
Indenture all Holders of Initial Securities and Exchange Securities shall vote
together under the Indenture.
ARTICLE IV
AMENDMENTS
SECTION 4.1 Authorization and Terms of the Initial Securities. Section
2.2(c) of the Indenture is hereby amended by replacing the date "June 30, 1999"
is the third line thereof with the date "June 15, 1999".
SECTION 4.2 Indebtedness. Section 5.13 of the Indenture is hereby
amended by (a) deleting the word "and" from the end of paragraph (d) thereof,
(b) replacing the period (".") at the end of paragraph (e) thereof with a
semicolon (";") and (c) adding the following to the end thereof:
and (f) Indebtedness represented by the Exchange Securities.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Execution of Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this First
Supplemental Indenture forms a part thereof. Except as amended and supplemented
hereby, the Indenture (as constituted prior to the date hereof) shall remain in
full force and effect.
4
SECTION 5.2 Concerning the Trustee. The Trustee shall not be
responsible in any manner for or with respect to the validity or sufficiency of
this First Supplemental Indenture, or the due execution hereof by CE Generation,
or for or with respect to the recitals and statements contained herein, all of
which recitals and statements are made solely by CE Generation.
SECTION 5.3 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original; but all such counterparts shall together constitute
but one and the same instrument.
SECTION 5.4 GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE AND EACH
SECURITY ISSUED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
5
IN WITNESS WHEREOF, CE Generation, LLC has caused this First
Supplemental Indenture to be executed and its corporate seal to be hereunto
affixed and attested by one of its duly authorized officers, and Chase Manhattan
Bank and Trust Company, National Association, has caused this First Supplemental
Indenture to be executed by one of its duly authorized officers, all as of the
day and year first above written.
CE GENERATION, LLC
By:
--------------------------------------
Name:
Title:
Attest:
--------------------------------------
Title:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:
6
Schedule I to
First Supplemental Indenture
PRINCIPAL AMORTIZATION
Except to the extent that principal has been paid on the Initial
Securities prior to the Exchange Offer Consummation Date, principal of the
Exchange Securities Due December 15, 2018 will be payable on the Payment Dates
listed below in an amount equal to the product of (i) the aggregate principal
amount of Initial Securities that are exchanged for Exchange Securities as of
the applicable Regular Record Date divided by the aggregate principal amount of
Initial Securities originally issued by CE Generation on March 2, 1999,
multiplied by (ii) the principal amount payable in accordance with this
Schedule I:
Percentage of
Principal
Payment Date Amount Payable
------------ --------------
December 15, 1999................................................. 0.000%
June 15, 2000..................................................... 1.300%
December 15, 2000................................................. 1.300%
June 15, 2001..................................................... 1.575%
December 15, 2001................................................. 1.575%
June 15, 2002..................................................... 2.575%
December 15, 2002................................................. 2.575%
June 15, 2003..................................................... 2.250%
December 15, 2003................................................. 2.250%
June 15, 2004..................................................... 1.825%
December 15, 2004................................................. 1.825%
June 15, 2005..................................................... 1.850%
December 15, 2005................................................. 1.850%
June 15, 2006..................................................... 2.400%
December 15, 2006................................................. 2.400%
June 15, 2007..................................................... 2.250%
December 15, 2007................................................. 2.250%
June 15, 2008..................................................... 3.525%
December 15, 2008................................................. 3.525%
June 15, 2009..................................................... 3.075%
December 15, 2009................................................. 3.075%
June 15, 2010..................................................... 1.775%
December 15, 2010................................................. 1.775%
June 15, 2011..................................................... 1.900%
December 15, 2011................................................. 1.900%
June 15, 2012..................................................... 2.560%
December 15, 2012................................................. 2.560%
June 15, 2013..................................................... 2.550%
December 15, 2013................................................. 2.550%
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June 15, 2014..................................................... 3.225%
December 15, 2014................................................. 3.225%
June 15, 2015..................................................... 3.380%
December 15, 2015................................................. 3.380%
June 15, 2016..................................................... 3.660%
December 15, 2016................................................. 3.660%
June 15, 2017..................................................... 3.780%
December 15, 2017................................................. 3.780%
June 15, 2018..................................................... 4.545%
December 15, 2018................................................. 4.545%
2
EXHIBIT A
FORM OF FACE OF SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES HELD BY A PERSON OTHER THAN DTC 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 DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY
BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO CE GENERATION OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND
ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY
DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, DTC OR ITS
NOMINEE, HAS AN INTEREST HEREIN.
A-1
CE GENERATION, LLC
7.416% Senior Secured Bonds Due December 15, 2018
No. [__________] CUSIP Number: [__________]
ISIN Number: [__________]
Principal Amount: $[___________]
Maturity Date: December 15, 2018
Issue Date: October [__], 1999
Interest Rate: 7.416%
Registered Holder: [_________]
CE GENERATION LLC, a Delaware limited liability company ("CE
Generation", which term includes any successor or assign under the Indenture
referred to below), for value received hereby promises to pay to [NAME OF
REGISTERED HOLDER], or its registered assigns, on each date (each a "Scheduled
Payment Date") the principal sum corresponding to such Scheduled Payment Date
set forth on Schedule I to the Indenture (reduced by the amount of principal, if
any, paid or due, or to be paid or to become due, on the Initial Securities (as
defined in the First Supplemental Indenture dated October [__], 1999)), or on
such earlier date as the entire principal hereof may become due in accordance
with the provisions hereof, and to pay interest in arrears on June 15 and
December 15 (each an "Interest Payment Date"), commencing June 15, 1999, on the
unpaid portion of the principal of this Security at the rate of 7.416% per
annum. Interest shall accrue from and including the most recent date to which
interest has been paid or duly provided for, from the date of the last interest
payment on the Initial Securities (as defined in the First Supplemental
Indenture dated October [__],1999) occurring prior to the issue date set forth
above or, if no interest has been paid on the Initial Securities (as defined in
the First Supplemental Indenture dated October [__], 1999), from March 2, 1999
until payment of said principal sum has been made or duly provided for. The
interest payable on any such Interest Payment Date will, subject to certain
conditions set forth herein, be paid to the person in whose name this Security
is registered at the end of the first day of the month, whether or not a
Business Day, immediately preceding such Interest Payment Date. Such payments
shall be made exclusively in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Security and by acceptance hereof the holder of this
Security agrees to be subject to and bound by the terms and provisions set forth
in such legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE SECURITIES ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
A-2
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-3
IN WITNESS WHEREOF, CE Generation has caused this instrument to be duly
executed.
Dated: ___________
CE GENERATION, LLC
By:
---------------------------------
Name:
Title:
This is one of the Securities described in the within-mentioned
Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Officer
A-4
EXHIBIT B
FORM OF TERMS AND CONDITIONS OF SECURITIES
Principal Amount: $[__________]
Interest Rate: 7.416%
Payment Dates: June 15 and December 15
(commencing June 15, 1999)
Minimum Denominations: US$1,000 and any integral multiple thereof
Other Terms:
1. General. This Security is one of a duly authorized issue of debt
securities (the "Securities") of CE Generation, LLC ("CE Generation") issued
pursuant to an Indenture, dated as of March 2, 1999, as supplemented by the
First Supplemental Indenture dated as of October [__], 1999 (as so supplemented
and as the same may be further amended, modified or supplemented from time to
time, the "Indenture"), each between CE Generation and Chase Manhattan Bank and
Trust Company, National Association, as trustee ("Trustee"). All capitalized
terms used but not otherwise defined herein shall have the meanings given to
such terms in Appendix A to the Indenture. The holders of the Securities will be
entitled to the benefits of, be bound by, and be deemed to have notice of, all
of the provisions of the Indenture. A copy of the Indenture is on file and may
be inspected at the corporate trust office of the Trustee in San Francisco,
California, at the offices of the paying agents listed at the foot of this
Security and at the principal office of CE Generation set forth in Section 17
hereto.
2. Payments and Paying Agencies. (a) All payments on this Security
shall be made exclusively in immediately available funds and in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for the payment of public and private debts.
(b) The Person in whose name any Security is registered at the close of
business on any Regular Record Date with respect to any Scheduled Payment Date
shall be entitled to receive the principal, premium (if any) and/or interest
payable on such Scheduled Payment Date notwithstanding the cancellation of such
Security upon any transfer or exchange thereof subsequent to such Regular Record
Date and prior to such Scheduled Payment Date; provided, however, that if and to
the extent there is a default in the payment of the principal, premium (if any)
and/or interest due on such Scheduled Payment Date, such defaulted principal,
premium (if any) and/or interest shall be paid to the Persons in whose names
Outstanding Securities are registered at the close of business on a subsequent
date (each such date, a "Special Record Date"), which shall not be less than
five (5) days preceding the date of payment of such defaulted principal, premium
(if any) and/or interest, established by a notice mailed by the Trustee to the
registered owners of the Securities in accordance with Section 12.5(b) of the
Indenture not less than fifteen (15) days prior to the Special Record Date.
Exhibit B-1
(c) If any date for the payment of principal of, premium (if any) or
interest on the Securities is not a Business Day, such payment shall be due on
the first Business Day thereafter. Any payment made on such next succeeding
Business Day shall have the same force and effect as if made on the date on
which such payment is due, and no interest shall accrue for the period after
such date.
(d) Interest shall be calculated on the basis of a 360-day year of
twelve 30-day months.
3. Amendments and Supplements to Indenture.
(a) Without Consent of Holders. The Indenture may be amended or
supplemented by CE Generation and the Trustee at any time and from time to time,
without the consent of the Holders, by a Supplemental Indenture authorized by a
resolution of the Board of Directors of CE Generation filed with, and in form
satisfactory to, the Trustee, solely for one or more of the following purposes:
(i) to add additional covenants of CE Generation, to surrender any
right or power therein conferred upon CE Generation or to confer upon
the Holders any additional rights, remedies, benefits, powers or
authorities that may lawfully be conferred;
(ii) to increase the assets securing CE Generation's obligations
under the Indenture;
(iii) to provide for the issuance of Additional Securities on the
conditions set forth in Section 2.3 of the Indenture;
(iv) for any purpose not inconsistent with the terms of the
Indenture to cure any ambiguity or to correct or supplement any
provision contained therein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained therein
or in any Supplemental Indenture;
(v) in connection with, and to reflect, any amendments to the
provisions hereof required by the Rating Agencies in circumstances
where confirmation of the Ratings is required under the Indenture in
connection with the issuance of Additional Securities or the taking of
other actions by CE Generation; provided, however, that such amendments
are not, in the judgment of the Trustee, to the prejudice of the
Trustee or the Holders; or
(vi) to provide for the issuance of Exchange Securities, as
contemplated by the Registration Rights Agreement.
(b) With Consent of Holders. The Indenture may be amended or
supplemented by CE Generation and the Trustee at any time and from time to time,
with the consent of the Majority Holders, for the purpose of adding any mutually
agreeable provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture, except with respect to (a) the principal, premium
(if any) or interest payable upon any Securities, (b) the
Exhibit B-2
dates on which interest on or principal of any Securities is paid, (c) the dates
of maturity of any Securities and (d) Article 8 of the Indenture. The matters of
the Indenture described in clauses (a) through (d) of the preceding sentence may
be amended or supplemented by CE Generation and the Trustee at any time and from
time to time only with the consent of the One Hundred Percent Holders. Notice of
any such amendment shall be given by CE Generation to any Rating Agency then
maintaining a Rating for the Securities.
4. Replacement, Exchange and Transfer of Securities. (a) If any
Security shall become mutilated, CE Generation shall execute, and the Trustee
shall authenticate and deliver, a new Security of like tenor, maturity and
denomination in exchange and substitution for the Security so mutilated, but
only upon surrender to the Trustee of such mutilated Security for cancellation,
and CE Generation or the Trustee may require reasonable indemnity therefor. If
any Security shall be reported lost, stolen or destroyed, evidence as to the
ownership and the loss, theft or destruction thereof shall be submitted to the
Trustee. If such evidence shall be satisfactory to both the Trustee and CE
Generation and indemnity satisfactory to both shall be given, CE Generation
shall execute, and thereupon the Trustee shall authenticate and deliver, a new
Security of like tenor, maturity and denomination. The cost of providing any
substitute Security under the provisions of Section 2.10 of the Indenture shall
be borne by the Holder for whose benefit such substitute Security is provided.
If any such mutilated, lost, stolen or destroyed Security shall have matured or
be about to mature, CE Generation may, with the consent of the Trustee, pay to
the Holder thereof the principal amount of such Security upon the maturity
thereof and compliance with the aforesaid conditions by such Holder, without the
issuance of a substitute Security therefor, and likewise pay to the Holder the
amount of the unpaid interest, if any, which would have been paid on a
substitute Security had one been issued.
(b) Every substitute Security issued pursuant to Section 2.10 of the
Indenture shall constitute an additional contractual obligation of CE
Generation, whether or not the Security alleged to have been mutilated,
destroyed, lost or stolen shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionally
with any and all other Securities duly issued hereunder.
(c) All Securities shall be held and owned upon the express condition
that the foregoing provisions are, to the extent permitted by Applicable Law,
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude any and all other rights and
remedies with respect thereto.
5. Trustee. For a description of the duties and the immunities and
rights of the Trustee under the Indenture, reference is made to the Indenture,
and the obligations of the Trustee to the holder hereof are subject to such
immunities and rights.
6. Paying Agents; Transfer Agents; Registrars. CE Generation has
initially appointed the Trustee as paying agent, transfer agent and registrar.
CE Generation may, subject to the terms of the Indenture, at any time appoint
additional or other paying agents, transfer agents and registrars and terminate
the appointment thereof; provided that while the Securities are Outstanding CE
Generation will maintain offices or agencies for payment of principal of and
interest on this Security as herein provided in the Borough of Manhattan, the
City of New York. Notice of any such termination or appointment and of any
change in the office through which
Exhibit B-3
any paying agent, transfer agent or registrar will act will be promptly given in
the manner described in Section 8 hereof.
7. Enforcement. (a) Subject to the Intercreditor Agreement and the
provisions of Article 6 of the Indenture, a Holder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise for
the appointment of a receiver or for the enforcement of any other remedy under
or upon the Indenture, unless:
(i) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default;
(ii) Holders representing the percentage of aggregate principal
amount of Outstanding Securities needed to initiate the exercise of remedies
shall have requested the Trustee in writing to institute such suit, action
or proceeding;
(iii) the Trustee shall have refused or neglected to institute any
such suit, action or proceeding for sixty (60) days after receipt of such
notice by the Trustee; and
(iv) no direction inconsistent with such written request has been
given to the Trustee during such sixty (60) day period by the Majority
Holders.
(b) Subject to the Intercreditor Agreement, it is understood and
intended that one or more of the Holders shall not have any right in any manner
whatsoever hereunder or under the Indenture to (i) surrender, impair, waive,
affect, disturb or prejudice the Lien of the Security Documents on any property
subject thereto or the rights of any other Holders, (ii) obtain or seek to
obtain priority or preference over any other Holders or (iii) enforce any right
hereunder or under the Indenture, except in the manner provided herein or in the
Indenture and for the equal, ratable and common benefit of all of the Holders.
8. Notices. Notices will be mailed to Holders at their addresses as
they appear in the Securities Register. Notice sent by first class mail, postage
prepaid, shall be deemed to have been given on the date of such mailing. In
addition, CE Generation will cause all such other publications of such notices
as may be required from time to time by Applicable Law.
9. Redemption at the Option of CE Generation. The Securities are, under
certain conditions, subject to redemption at the option of CE Generation as set
forth in Section 3.1 of the Indenture.
10. Mandatory Redemption. The Securities are subject to mandatory
redemption under certain circumstances as set forth in Section 3.2 of the
Indenture.
11. Authentication. This Security shall not be valid for any purpose
until an Authorized Representative of the Trustee manually signs the certificate
of authentication hereon substantially in the form set forth in Exhibit A to the
Indenture.
Exhibit B-4
12. Governing Law. THIS SECURITY IS A CONTRACT MADE UNDER THE LAWS OF
THE ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ AND SHALL FOR ALL PURPOSES BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
13. Warranty by Issuer. Subject to Section 11, CE Generation hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Security, and to constitute the same a legal, valid and binding obligation
of CE Generation enforceable in accordance with its terms, have been done and
performed and have happened in due and strict compliance with all Applicable
Laws.
14. Trustee Dealings with CE Generation. Subject to certain limitations
imposed by the Securities Act, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to it by CE Generation
or its Affiliates and may otherwise deal with CE Generation or its Affiliates
with the same rights it would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee, partner,
member, affiliate, agent, servant or stockholder, as such, of CE Generation or
the Trustee shall not have any liability for any obligations of CE Generation
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder waives and releases all such liability. Such waiver and release are
part of the consideration for the issue of the Securities.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, CE Generation has
caused CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Security holders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption.
17. Indentures. CE Generation will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to: CE
Generation, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT (Tenants by
the Entireties), JT TEN (Joint Tenants with Rights of Survivorship and not as
Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to Minors Act).
19. Descriptive Headings. The descriptive headings appearing in these
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions thereof.
Exhibit B-5