EXHIBIT 4(c)
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NIAGARA MOHAWK POWER CORPORATION
SENIOR NOTES
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INDENTURE
Dated as of ______________, 1998
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IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
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Trustee
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE- 1 -
Section 1.01. Definitions.............................................- 1 -
Section 1.02. Other Definitions.......................................- 16 -
Section 1.03. Incorporation by Reference of Trust Indenture Act.......- 16 -
ARTICLE 2
THE SENIOR NOTES- 18 -
Section 2.01. Series And Terms of Senior Notes........................- 18 -
Section 2.02. Terms of Initial Series Senior Notes....................- 20 -
Section 2.03. Form and Dating.........................................- 23 -
Section 2.04. Execution and Authentication............................- 23 -
Section 2.05. Registrar and Paying Agent..............................- 24 -
Section 2.06. Paying Agent and to Hold Money in Trust.................- 24 -
Section 2.07. Holder Lists............................................- 24 -
Section 2.08. Transfer and Exchange...................................- 25 -
Section 2.09. Replacement Senior Notes................................- 25 -
Section 2.10. Outstanding Senior Notes................................- 26 -
Section 2.11. Treasury Senior Notes...................................- 26 -
Section 2.13. Cancellation............................................- 27 -
Section 2.14. Record Date.............................................- 27 -
Section 2.15. Cusip Number............................................- 27 -
ARTICLE 3.
REDEMPTION AND ▇▇▇▇▇▇▇▇▇▇- ▇▇ -
Section 3.01. Certain Senior Notes Redeemable; Notices to Trustee.....- 27 -
Section 3.02. Selection of Senior Notes to Be Redeemed................- 28 -
Section 3.03. Notice of Redemption....................................- 28 -
Section 3.04. Effect of Notice of Redemption..........................- 29 -
Section 3.05. Deposit of Redemption Price.............................- 30 -
Section 3.06. Senior Notes Redeemed in Part...........................- 30 -
Section 3.07. Optional Redemption of Initial Series Senior Notes......- 30 -
Section 3.08. Mandatory Redemption....................................- 31 -
Section 3.09. Offer to Purchase by Application of Excess Proceeds.....- 31 -
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ARTICLE 4
COVENANTS- 33 -
Section 4.01. Payment of Senior Notes.................................- 33 -
Section 4.02. Maintenance of Office or Agency.........................- 34 -
Section 4.03. Reports.................................................- 34 -
Section 4.04. Compliance Certificate..................................- 35 -
Section 4.05. Taxes...................................................- 35 -
Section 4.06. Stay, Extension and Usury Laws..........................- 36 -
Section 4.07. Restricted Payments.....................................- 36 -
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries............................................- 38 -
Section 4.09. Incurrence of Indebtedness..............................- 38 -
Section 4.10. Proceeds of Certain Asset Sales.........................- 39 -
Section 4.11. Transaction with Affiliates.............................- 40 -
Section 4.12. Liens...................................................- 41 -
Section 4.13. Corporate Existence.....................................- 41 -
Section 4.14. Offer to Repurchase Upon Change of Control Triggering
Event...................................................- 41 -
Section 4.15. Payments for Consents...................................- 43 -
ARTICLE 5
SUCCESSORS- 43 -
Section 5.01. Merger, Consolidation, or Sale of Assets................- 43 -
Section 5.02. Successor Corporation Substituted.......................- 44 -
ARTICLE 6
DEFAULTS AND REMEDIES- 44 -
Section 6.01. Events of Default.......................................- 44 -
Section 6.02. Acceleration............................................- 46 -
Section 6.03. Other Remedies..........................................- 47 -
Section 6.04. Waiver of past Defaults.................................- 47 -
Section 6.05. Control by Majority.....................................- 47 -
Section 6.06. Limitation on Suits.....................................- 48 -
Section 6.07. Rights of Holders of Senior Notes to Receive Payment....- 48 -
Section 6.08. Collection Suit by Trustee..............................- 48 -
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Section 6.09. Trustee May File Proofs of Claim........................- 49 -
Section 6.10. Trustee May File Proofs of Claim........................- 49 -
Section 6.11. Undertaking for Costs...................................- 50 -
ARTICLE 7
TRUSTEE- 50 -
Section 7.01. Duties of Trustee.......................................- 50 -
Section 7.02. Rights of Trustee.......................................- 51 -
Section 7.03. Individual Rights of Trustee............................- 51 -
Section 7.04. Trustee's Disclaimer....................................- 52 -
Section 7.05. Notice of Defaults......................................- 52 -
Section 7.06. Reports by Trustee to Holders of the Senior Notes.......- 52 -
Section 7.07. Compensation and Indemnity..............................- 52 -
Section 7.08. Replacement of Trustee..................................- 53 -
Section 7.09. Successor Trustee by Merger, Etc........................- 54 -
Section 7.10. Eligibility, Disqualification...........................- 54 -
Section 7.11. Preferential Collection of Claims Against Company.......- 55 -
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE- 55 -
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance- 55 -
Section 8.02. Legal Defeasance and discharge..........................- 55 -
Section 8.03. Covenant Defeasance.....................................- 56 -
Section 8.04. Conditions to Legal or Covenant Defeasance..............- 56 -
Section 8.05. Deposited Money and Government Senior Notes to Be Held
in Trust; Other Miscellaneous Provisions................- 58 -
Section 8.06. Repayment of Company....................................- 58 -
Section 8.07. Reinstatement...........................................- 59 -
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER- 59 -
Section 9.01. Without Consent of Holders of Senior Notes..............- 59 -
Section 9.02. With Consent of Holders of Senior Notes.................- 60 -
Section 9.03. Compliance with Trust Indenture Act.....................- 62 -
Section 9.04. Revocation and Effect of Consents.......................- 62 -
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Section 9.05. Notation on or Exchange of Senior Notes.................- 63 -
Section 9.06. Trustee to Sign Amendments, Etc.........................- 63 -
Section 9.07. Effect Of Supplemental Indentures. ....................- 63 -
ARTICLE 10
MISCELLANEOUS- 64 -
Section 10.01. Trust Indenture Act Controls............................- 64 -
Section 10.02. Notices.................................................- 64 -
Section 10.03. Communication by Holders of Senior Notes with Other
Holders of Senior Notes.................................- 65 -
Section 10.04. Certificate And Opinion as to Conditions Precedent......- 65 -
Section 10.05. Statements Required in Certificate or Opinion...........- 65 -
Section 10.06. Rules by Trustee and Agents.............................- 66 -
Section 10.07. No Personal Liability of Directors, Officers, Employees
and Stockholders........................................- 66 -
Section 10.08. Governing Law...........................................- 66 -
Section 10.09. No Adverse Interpretation of Other Agreements...........- 66 -
Section 10.10. Successors..............................................- 66 -
Section 10.11. Severability............................................- 67 -
Section 10.12. Counterpart Originals...................................- 67 -
Section 10.13. Table of Contents, Headings, Etc........................- 67 -
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INDENTURE dated as of _____________, 1998 between Niagara Mohawk Power
Corporation, a New York corporation (the "Company") and IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Senior Notes
issued hereunder.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged or amalgamated with or into or became a Restricted Subsidiary of such
specified Person including, without limitation, any Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors, if any, of the
Company or any authorized committee thereof.
"Board Resolution" means a resolution authorized by the Board of
Directors.
"Business Day" means any day other than a Legal Holiday.
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"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet of such
Person in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, shares of
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) Government Securities having maturities of
not more than eighteen months from the date of acquisition; (ii) certificates of
deposit and eurodollar time deposits with maturities of eighteen months or less
from the date of acquisition, bankers' acceptances with maturities not exceeding
eighteen months and overnight bank deposits, in each case with any lender party
to the Credit Facility or with any U.S. commercial bank having capital and
surplus in excess of $500 million; (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (i) and (ii) above entered into with any financial institution meeting
the qualifications specified in clause (ii) above; (iv) commercial paper having
either the highest or second highest rating obtainable from ▇▇▇▇▇'▇ or S&P and
in each case maturing within six months after the date of acquisition; (v) other
corporate debt or asset backed or mortgage backed securities with an Investment
Grade rating from ▇▇▇▇▇'▇ or S&P and which mature within eighteen months; and
(vi) money market mutual funds.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger, amalgamation or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole; (ii) the adoption of a plan relating
to the liquidation or dissolution of the Company; (iii) the consummation of any
transaction (including, without limitation, any merger, amalgamation or
consolidation) the result of which is that any "person" or "group" (as such
terms are defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) becomes
the "beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the total
voting power in the aggregate, on a fully diluted basis, of all classes of
Capital Stock of the Company then outstanding normally entitled to vote in the
election of directors; or (iv) the first day on which a majority of the members
of the Board of Directors of the Company are not Continuing Directors; provided,
however, that the consummation of a transaction in which the outstanding shares
of Common Stock are exchanged for common stock of a Person that thereafter will
be the sole shareholder of the Company as part of a holding company
reorganization shall not be deemed a "Change of Control." For purposes of this
definition, any transfer of an equity interest of an entity that was formed for
the purpose of acquiring voting stock of
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the Company will be deemed to be a transfer of such portion of such voting stock
as corresponds to the portion of the equity of such entity that has been so
transferred.
"Change of Control Triggering Event" means the occurrence of a Change
of Control and a Rating Decline.
"Common Stock" means the Company's common stock, $1.00 par value.
"Company Order" means a written order, signed in the name of the
Company by an authorized Officer and delivered to the Trustee, for the
authentication and delivery of Senior Notes of the relevant series pursuant to
this Indenture or any Supplemental Indenture pursuant to the procedures
described herein or therein.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders (or
equity holders) of such Person and its consolidated Restricted Subsidiaries as
of such date, plus (ii) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of Preferred Stock that by its
terms is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such Preferred Stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the Initial Issuance Date in the book value of
any asset owned by such Person or a Restricted Subsidiary of such Person, (y)
all investments as of such date in Unrestricted Subsidiaries and (z) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Initial Issuance Date or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 or such other address as the Trustee may give
notice to the Company.
"Credit Facility" [means the unsecured senior credit facility of the
Company - to be completed], as such agreement is amended, modified, restated,
extended, renewed, replaced or refinanced from time to time.
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"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is one year after the final maturity of the outstanding series of Senior
Notes with the longest maturity.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts in the United States.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when applied to any property means its fair value to the
Company, which may be determined without physical inspection by use of
accounting and engineering records and other data maintained by, or available
to, the Company; provided that the Company delivers a Board Resolution
specifying the Fair Value of the assets being sold and, in the event of a
transaction in excess of $50.0 million, the Company also delivers an opinion of
a nationally recognized expert in the valuation of the assets being sold as to
the Fair Value of the assets being sold and that the transaction is fair to the
Company.
"First Mortgage Bonds" means the securities and other Indebtedness
issued from time to time pursuant to the Company's Mortgage Trust Indenture
dated as of October 1, 1937 and the supplemental indentures thereto.
"Fixed Charge Coverage Ratio" of the Company and its Restricted
Subsidiaries means for any period, the ratio of (i) the sum (determined from the
consolidated income statement of the Company and its Restricted Subsidiaries) of
(A) operating income or operating loss of the Company and its Restricted
Subsidiaries, taken as a whole, for such period plus (B) depreciation and
amortization (including amortization of goodwill and other intangibles and of
the MRA Regulatory Asset and other non-cash regulatory deferrals and
amortizations) and other non-recurring, non-cash charges of the Company and its
Restricted Subsidiaries for such period to the extent that such deprecation and
amortization and other non-recurring, non-cash charges were deducted in
computing operating income or operating loss, in each case on a consolidated
basis and determined in accordance with GAAP, plus (C) provision for taxes based
on income or profits of the Company and its Restricted Subsidiaries for such
period to the extent deducted in determining operating income, to (ii) the sum
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of (A) the consolidated interest expense of the Company and its Restricted
Subsidiaries for such period, whether paid or accrued (including, without
limitation, amortization of original issue discount, non-cash interest payments,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to any sale and leaseback
transactions, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings (unless such
commissions, discounts and other fees and charges have been deducted in
calculating operating income), and net payments (if any) pursuant to Hedging
Obligations; plus (B) the consolidated interest expense of the Company and its
Restricted Subsidiaries that was capitalized during such period; plus (C) any
interest expense on Indebtedness of another Person that is Guaranteed by the
Company or one of its Restricted Subsidiaries or secured by a Lien on assets of
the Company or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon); plus (D) the quotient obtained by dividing all cash
dividend or other payments or distributions on or in respect of any series of
Preferred Stock, other than Preferred Stock issued for tax reasons by a trust
wholly-owned by the Company which represent preferred undivided beneficial
interests in the assets of the trust that consist of debt instruments issued by
the Company (i.e., "TIPES"), of the Company or any of its Restricted
Subsidiaries by 1 minus the maximum statutory income tax rate then applicable to
the Company (expressed as a decimal), in each case, on a consolidated basis and
in accordance with GAAP. In the event that the Company or any of its Restricted
Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness (other than
revolving credit borrowings) or issues Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date on which the event for which the calculation of
the Fixed Charge Coverage Ratio is made, then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
Guarantee or redemption of Indebtedness, or such issuance or redemption of
Preferred Stock, as if the same had occurred at the beginning of the applicable
reference period.
"GAAP" means generally accepted accounting principles in use at the
Initial Issuance Date or, at the option of the Company, other generally accepted
accounting principles which are in use at the time of their determination; in
determining generally accepted accounting principles, the Company may, but shall
not be required to, conform to any accounting order, rule or regulation of any
regulatory authority having jurisdiction over the electric generating,
transmission or distribution operations of the Company.
"Generating Assets" means the Company's nuclear, fossil and
hydroelectric generation plants other than the Oswego Plant, and any related
asset necessary for the operation of any such plant and any associated license
or permit.
"Government Securities" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such
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Government Securities or a specific payment or interest on or principal of any
such Government Securities held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the custodian in
respect of the Government Securities or the specific payment of interest on or
principal of the Government Securities evidenced by such depository receipt.
"Gradation" means a gradation within a Rating Category or a change to
another Rating Category, which shall include "+" and "-", in the case of S&P's
current Rating Categories (e.g., a decline from BB+ to BB would constitute a
decrease of one gradation); "1", "2" and "3", in the case of ▇▇▇▇▇'▇ current
Rating Categories (e.g. a decline from B1 to B2 would constitute a decrease of
one gradation); or the equivalent in respect of successor Rating Categories used
by Rating Agencies other than S&P or ▇▇▇▇▇'▇.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit,
reimbursement agreements and support, "keep well" or similar agreements in
respect thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any interest rate, currency or commodity swap
agreement, interest rate, currency or commodity future agreement, interest rate
cap or collar agreement, interest rate, currency or commodity hedge agreement,
and any put, call or other agreement designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
"Holder" means a person in whose name a Senior Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations of
such Person, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, any Guarantees by such Person of any indebtedness of any
other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
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"Initial Issuance Date" means the date of closing of the public
offering of the Initial Series Senior Notes as set forth in a Company Order.
"Initial Series Senior Notes" means the Series [to be supplied] Senior
Notes issued on the Initial Issuance Date.
"Investment" means, with respect to any Person, any investment by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances (excluding commission, travel and similar advances to employees made in
the ordinary course of business) or capital contributions, purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP; provided, however, that an
acquisition of assets, Equity Interests or other securities by the Company for
consideration consisting of assets or Capital Stock (other than Disqualified
Stock) shall not be deemed to be an Investment.
"Investment Grade" means BBB- or above, in the case of S&P (or its
equivalent under any successor rating categories of S&P), or the equivalent in
respect of the Rating Categories of any other Rating Agency.
"Investment Grade Date" means the date of delivery by the Company to
the Trustee of an Officers' Certificate to the effect that the Senior Notes of
the series having the longest maturity then outstanding have been rated
Investment Grade by (i) S&P and ▇▇▇▇▇'▇ or (ii) S&P or ▇▇▇▇▇'▇ and at least one
other Rating Agency identified in such certificate.
"IPP Buyout" means the termination, restatement or amendment of certain
power purchase agreements in exchange for cash and securities pursuant to the
terms of the Master Restructuring Agreement.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge, or adverse claim affecting title or resulting in a charge
against real or personal property, or a security interest of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option, other agreement to sell
or give a security interest in and any
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filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Make Whole Premium" with respect to any Senior Note shall mean with
respect to any prepayment of such Senior Note in circumstances requiring the
payment of a Make Whole Premium, an amount equal to the excess of (a) the
aggregate present value as of the date of such prepayment of the expected future
cash flows of such Senior Note (for the avoidance of doubt, such amounts shall
include all principal and interest payable with respect to such Senior Note)
(exclusive of interest accrued to the date of prepayment) that, but for such
prepayment, would have been payable if such prepayment had not been made, all
determinated by discounting such amounts at a rate which is equal to the
Treasury Rate plus .50% over (b) the aggregate principal amount of the Senior
Note then to be prepaid. For purposes of any determination of the Make Whole
Premium:
"Treasury Rate" shall mean at any time with respect to the
Senior Notes being prepaid (a) the yield reported on page C4
of the Bloomberg Financial Markets Service (or, if not
available, any other nationally recognized trading screen
reporting on-line intraday trading in United States government
securities) at 11:00 A.M. (New York, New York time) for those
actively traded United States government securities having a
maturity (rounded to the nearest month) corresponding to the
remaining Weighted Average Life to Maturity of the Senior
Notes being prepaid or (b) in the event that no nationally
recognized trading screen reporting on-line intraday trading
in United States government securities is available, Treasury
Rate shall mean the weekly average of the yield to maturity on
the United States Treasury obligations with a constant
maturity (as compiled by and published in the most recently
published issue of the United States Federal Reserve
Statistical Release designated H.15(519) or its successor
publication) most nearly equal to (by rounding to the nearest
month) the Weighted Average Life to Maturity of the Senior
Notes then being prepaid. If no maturity exactly corresponding
to such Weighted Average Life to maturity of such Senior Notes
shall appear therein, the weekly average yield for the two
most closely corresponding published maturities shall be
calculated pursuant to the foregoing sentence and the Treasury
Rate shall be interpolated or extrapolated, as the case may
be, from such yields on a straight-line basis (rounding, in
the case of relevant periods, to the nearest month).
"Master Restructuring Agreement" means the Master Restructuring
Agreement dated July 9, 1997 among the Company and the independent power
producer parties thereto, as amended from time to time.
"Medium-Term Notes" means [to be supplied].
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to
its securities ratings business.
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"MRA Regulatory Asset" means the item designated as such on the
Company's balance sheet, which represents amounts that the Company is permitted
to collect from customers, pursuant to the regulations of the PSC, in respect of
the IPP Buyout and the other transactions contemplated by the Master
Restructuring Agreement.
"Net Proceeds" means the aggregate cash proceeds received by a Person
in respect of any sale of assets, net of amounts paid to minority interests,
co-owners or lienholders, the direct costs relating to such sale (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions), taxes paid or payable which are attributable to such sale (after
taking into account any available tax credits or deductions and any tax sharing
arrangements relating to such assets) and any cash reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provide credit support of any
kind (including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the Holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Nuclear Generating Assets" means the Company's interest in Units 1 and
2 of the Nine Mile Point Nuclear Generating Plant, and any related asset
necessary for the operation of such plants and any associated license or permit.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers" means the Chief Executive Officer, the President, the
Executive Vice President, the Treasurer, any Assistant Treasurer, Controller,
Secretary or any Vice President of the Company.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 10.05 hereof.
- 9 -
"Operating Cash Flow" means, with respect to any Person for any period,
the net cash provided by operating activities of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
1005 hereof. The counsel may be an employee of or counsel to the Company.
"Oswego Plant" means the interest of the Company in the fossil fuel
electric generation plant located near Lake Ontario in Oswego, New York.
"Other Indebtedness" shall mean (i) the Credit Facility and any
Permitted Refinancing Indebtedness with respect thereto and (ii) any other
Senior Indebtedness incurred after the Initial Issuance Date, except (a) First
Mortgage Bonds issued pursuant to clause (ii) of the second paragraph of Section
4.09; (b) Permitted Refinancing Indebtedness with respect to First Mortgage
Bonds in an amount equal to the aggregate amount of First Mortgage Bonds issued
and outstanding at the closing on the Initial Issuance Date; and (c)
Indebtedness under the Securitization Transaction and the Receivables Financing
and any Permitted Refinancing Indebtedness with respect thereto.
"Permitted Asset Swap" means any swap of utility property or assets (or
assets related or ancillary thereto) of the Company for other property or assets
that will be used in or in connection with the Company's utility business.
"Permitted Hedging Agreement" of any Person shall mean any Hedging
Obligation entered into in the ordinary course of business or pursuant to the
Master Restructuring Agreement and not for speculation or trading purposes that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates or commodity prices with respect to Indebtedness
incurred or proposed to be incurred or assets used in the business in the
ordinary course and which in the case of agreements relating to interest rates
shall have a notional amount no greater than the payments due with respect to
the Indebtedness being hedged thereby.
"Permitted Investment" means (a) an Investment in the Company or in a
Restricted Subsidiary of the Company (including Investments by the Company in
the First Mortgage Bonds or Senior Notes to the extent otherwise permitted by
this Indenture); (b) an Investment in Cash Equivalents; (c) an Investment by the
Company or any Restricted Subsidiary in a Person, if as a result of such
Investment (i) such Person becomes a direct or indirect Restricted Subsidiary of
the Company or (ii) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company; (d) an
Investment in any Person owning or operating electric generation, transmission
or distribution facilities or gas distribution or transportation or related
systems in which the Company owns joint or undivided interests; (e) an
Investment in a Person formed as a special purpose entity in
- 10 -
conjunction with a Receivables Financing or Securitization Transaction; (f) an
Investment received in connection with the bankruptcy or reorganization of
customers and suppliers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the ordinary course of
business; and (g) any payment pursuant to those existing Investments of the
Company, including the nuclear decommissioning trust fund and the employee
benefits plan trusts, described in Schedule 1 attached hereto.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to renew, extend, refinance, replace (including the
replacement at any time following their stated maturity of First Mortgage Bonds
or Senior Notes that are repaid at maturity, or the replacement at any time
following its stated maturity of the Credit Facility or the Receivables
Financing), defease or refund, in whole or in part, other Indebtedness of the
Company or any of its Restricted Subsidiaries; provided, however, that (i) the
principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness so renewed, extended, refinanced, replaced,
defeased or refunded (plus the amount of accrued interest and premiums
(including premium paid on open market purchases), if any, thereon and the
reasonable expenses incurred in connection therewith); (ii) Permitted
Refinancing Indebtedness that is incurred prior to the maturity of the
Indebtedness that it is renewing, extending, refinancing, replacing, defeasing
or refunding must be on terms at least as favorable to the holders of Notes as
those contained in the documentation governing the Indebtedness being renewed,
extended, refinanced, replaced, defeased, or refunded and: (a) if such
Indebtedness has a final maturity date earlier than the final maturity date of
the series of Notes with the latest final maturity date, then such Permitted
Refinaning Indebtedness must have a final maturity date the same as or later
than the final maturity date of, and a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, extended, refinanced, replaced defeased or refunded, and (b) if
such Indebtedness has a final maturity date later than the final maturity date
of the series of Notes with the latest final maturity date, then such Permitted
Refinancing Indebtedness must have a final maturity date the same as or later
than the final maturity date of, and a Weighted Average Life to Maturity equal
to or greater than the maturity of, the series of Notes with the latest final
maturity date; (iii) if the Indebtedness being renewed, extended, refinanced,
replaced, defeased or refunded is subordinated in right of payment to the Senior
Notes, such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of payment to, the
Senior Notes on terms at least as favorable to the holders of Senior Notes as
those contained in the documentation governing the Indebtedness being
refinanced, replaced, defeased or refunded; and (iv) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary (or, in the case
of the Receivables Financing, the special purpose entity) that is the obligor on
the Indebtedness being renewed, extended, refinanced, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"Pollution Control Obligations" means the Indebtedness or other
obligations (however designated) of the Company in respect of tax-exempt revenue
bonds issued by the New York State Energy Research and Development Authority.
- 11 -
"PowerChoice Agreement" means the PowerChoice Settlement Agreement
between the Company and the PSC, as approved by the PSC in an Order dated March
20, 1998, as such agreement may be modified or amended from time to time.
"Preferred Stock" means any Capital Stock of the Company which by its
terms has preference to Common Stock in right of dividends or other
distributions upon liquidation or dissolution.
"PSC" means the New York State Public Service Commission, or any
successor agency or other governmental entity performing the same function.
"Rating Agency" means any of S&P, Moody's, ▇▇▇▇ & ▇▇▇▇▇▇ Credit Rating
Company and Fitch Investors Service, Inc. and their successors.
"Rating Categories" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); (ii) with respect to Moody's,
any of the following categories (any of which may include a "1", "2" or "3"):
Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories);
and (iii) the equivalent of any such categories of S&P or Moody's used by
another Rating Agency, if applicable.
"Rating Decline" means, at any time within 90 days (which period shall
be extended so long as the rating of the Senior Notes is under publicly
announced consideration for a possible downgrade by any Rating Agency) after the
date of public notice of a Change of Control, or the intention of the Company or
any Person to effect a Change of Control, (i) the Rating of the Senior Notes is
decreased at least one Gradation by any Rating Agency or (ii) a withdrawal of
the rating of the Senior Notes by any Rating Agency.
"Receivables Financing" means the Obligation of the Company pursuant to
the [describe agreement], as such agreement is amended or modified from time to
time.
"Related Asset" means real or tangible personal property integral to
the generation, transmission or distribution of electricity or the
transportation or distribution of natural gas, and ancillary or related
activities, including other energy-related businesses.
"Repurchase Offer" means a Change of Control Offer.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee 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
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to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poors' Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Sale of Assets" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation by way of a sale and
leaseback) by the Company or any Restricted Subsidiary other than sales of
inventory or other current assets in the ordinary course of business consistent
with past practice (provided that the sale, lease conveyance or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole will be governed by Sections 4.14 and/or Section
5.01 and not Section 4.10 hereof); (ii) the issue or sale by the Company or any
of its Restricted Subsidiaries of Equity Interests of any of their Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a Fair Value in
excess of $25.0 million or (b) for Net Proceeds in excess of $25.0 million;
(iii) the sale or other disposition (but not any spin-off or other distribution
to the Company's shareholders) of the Generating Assets or the Oswego Plant; or
(iv) a Securitization Transaction. Notwithstanding the foregoing: (i) a transfer
of assets by the Company to a Wholly-Owned Restricted Subsidiary or by a
Wholly-Owned Restricted Subsidiary to the Company or to another Wholly-Owned
Restricted Subsidiary; (ii) an issuance of Equity Interests by a Wholly-Owned
Restricted Subsidiary to the Company or to another Wholly-Owned Restricted
Subsidiary; (iii) a Restricted Payment that is permitted by Section 4.07; (iv)
sales of property or equipment that have become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any of its Restricted Subsidiaries; (v) transactions involving the license,
lease or sublease of any real or personal property in the ordinary course of
business; (vi) the making of any Permitted Investment; (vii) the transfer, sale
or assignment of assets to a single purpose entity in connection with the
Receivables Financing; and (viii) a Permitted Asset Swap will not be deemed to
be a Sale of Assets.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Transaction" means a transaction in which the Company,
pursuant to authorization of the PSC, or other appropriate governmental
authorizations, transfers rights or other
- 13 -
property to a Person formed as a special purpose entity in conjunction with a
financing based on the Company's right to collect a non-by passable wires or
similar fee.
"Senior Indebtedness" means any senior Indebtedness of the Company,
including the First Mortgage Bonds, the Credit Facility, the Senior Notes and
the Medium-Term Notes.
"Senior Notes" means the Company's Series [to be supplied] Senior Notes
and any other series of Senior Notes issued under this Indenture or any
Supplemental Indenture.
["Series __ Senior Notes" means the Company's __% Series __ Senior
Notes due ____, which were issued pursuant to the Indenture on the Initial
Issuance Date.
[Add/delete series as necessary.]
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Subordinated Indebtedness" means Indebtedness of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
Guaranteed by the Company or its Restricted Subsidiaries) which is subordinate
to the Senior Notes in right of payment or rights upon liquidation of the
Company, whether pursuant to the terms of the instrument creating or evidencing
such Indebtedness or otherwise.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
- 14 -
"Supplemental Indenture" means any indenture hereafter duly authorized
and approved by the Board of Directors and entered into between the Company and
the Trustee in accordance with this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Section 9.03 hereof.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) Opinac North America, Inc., Opinac
Energy Corporation, Plum Street Enterprises, Inc., Canadian Niagara Power
Company, Limited and any other Subsidiary that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board Resolution; but only
to the extent that any such Subsidiary: (a) has no Indebtedness other than
Non-Recourse Debt; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; and (d)
has not Guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness of the Company or any of its Restricted Subsidiaries. Any
such designation by the Board of Directors will be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and was permitted by Section
4.07 of this Indenture. If, at any time, any Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date by Section 4.07, the Company shall be in default of
such provision). The Board of Directors may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted by Section 4.07 and (ii) no Default or Event of Default would be in
existence following such designation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a)
- 15 -
the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment,
by (ii) the then outstanding principal amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or ownership
interests of which (other than directors' qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Restricted Subsidiaries
of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Term Defined in Section
"Affiliate Transaction"......................... 4.11
"Asset Sale Offer".............................. 4.10
"Beneficial Owners" ............................ 2.02
"Case".......................................... 6.01
"Change of Control Offer"....................... 4.14
"Change of Control Payment"..................... 4.14
"Change of Control Payment Date"................ 4.14
"Covenant Defeasance"........................... 8.03
"Custodian"..................................... 6.01
"Event of Default".............................. 6.01
"Incur"......................................... 4.09
"Legal Defeasance".............................. 8.02
"Offer Amount".................................. 3.09
"Offer Period".................................. 3.09
"Participant" .................................. 2.02
"Paying Agent".................................. 2.05
"Payment Default"............................... 6.01
"Purchase Date"................................. 3.09
"Registrar"..................................... 2.05
"Restricted Payments"........................... 4.07
"Securities Depositary" ........................ 2.02
"Successor Entity" ............................. 5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
- 16 -
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Notes;
"indenture security holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Senior Notes means the Company, or any successor
obligor upon the Senior Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States;
(3) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect in the United
States as of the time when and for the period as to which such
accounting principles are to be applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular;
(6) provisions apply to successive events and transactions; and
(7) the words "he," "his," and "him" refer to both the masculine
and feminine gender.
- 17 -
ARTICLE 2
THE SENIOR NOTES
SECTION 2.01. SERIES AND TERMS OF SENIOR NOTES.
At the option of the Company, Senior Notes may be issued under this
Indenture in one or more series and in an unlimited amount. All Senior Notes
issued under this Indenture and any sums which may be secured by this Indenture
shall be secured equally, to the same extent and with the same priority, as the
amount initially advanced on the security of this Indenture.
Except for the Initial Series Senior Notes, which are created hereby,
each series of Senior Notes shall be created and established in a Supplemental
Indenture which shall designate the title of such series of Senior Notes, any
maximum aggregate principal amount of Senior Notes of such series which may be
authenticated and delivered upon the original issuance or issuances of such
Senior Notes, and the currency or currencies, including composite currencies, in
which payment of the principal of and interest, if any, on such Senior Notes
shall be payable if other than in Dollars.
The Supplemental Indenture which creates and establishes a series of
Senior Notes, or a Company Order pursuant to such Supplemental Indenture, shall
specify the form of Senior Notes of such series (and, if applicable, any
coupons) and any and all of the terms of such Senior Notes or the method of
determining such terms, which terms may include, but are not limited to:
(i) the principal amount of such Senior Notes to be authenticated
and delivered upon their original issuance at any particular time;
(ii) the date on which such Senior Notes are to be issued, and the
date from which interest, if any, will accrue on such Senior Notes;
(iii) the rate of interest, if any, which shall be borne by such
Senior Notes and, if such interest rate is not a fixed rate, the
formula for determining such interest rate from time to time;
(iv) the interest payment dates, if any, with respect to such
Senior Notes;
(v) the record dates for the payment of interest on any interest
payment dates with respect to such Senior Notes;
(vi) the date or dates on which principal of such Senior Notes is
payable;
- 18 -
(vii) the place or places where (A) the principal of and interest,
if any, on such Senior Notes shall be payable upon presentation
thereof, (B) such Senior Notes may be surrendered for registration of
transfer, (C) such Senior Notes may be surrendered for exchange, and
(D) notices and demands to or upon the Company in respect of such
Senior Notes and this Indenture may be served, if different than as
provided in Section 10.02;
(viii) the means, which may include mail, for the payment of
principal of and interest, if any, on such Senior Notes;
(ix) if such Senior Notes may be established in book entry or
certificate form;
(x) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Senior Notes may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or
repurchase such Senior Notes pursuant to any sinking, improvement,
maintenance, replacement or analogous fund 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 such Senior Notes shall
be redeemed or repurchased, in whole or in part, pursuant to such
obligation;
(xii) if the principal of or interest, if any, on such Senior
Notes, are to be payable, at the election of the Company or a Holder of
such Senior Notes, in a coin or currency other than that in which such
Senior Notes are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(xiii) if the principal of or interest, if any, on such Senior Notes
are to be payable, or are to be payable at the election of the Company
or a Holder of such Senior Notes, in securities or other property, the
type and amount of such securities or other property, or the method by
which such amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any election may be
made;
(xiv) if the amount of payments of principal of or interest, if
any, on such Senior Notes may be determined with reference to an index
or other fact or event ascertainable outside of this Indenture, the
manner in which such amounts shall be determined;
(xv) if other than the principal amount of such Senior Notes, the
portion of such principal amount of such Senior Notes which shall be
payable upon a declaration that the principal of such Senior Notes is
due and payable immediately pursuant to Section 6.02;
- 19 -
(xvi) the terms, if any, pursuant to which such Senior Notes may be
converted into or exchanged for shares of Capital Stock or other
securities of the Company or of any other Person;
(xvii) the obligations or instruments, if any, which shall be
considered to be eligible obligations in respect of such Senior Notes
if they are denominated in a composite currency or in a currency other
than Dollars;
(xviii) if a service charge will be made for the registration of
transfer or exchange of such Senior Notes the amount or terms thereof;
and
(xix) any variation in the definition of Business Day with respect
to such Senior Notes.
The Senior Notes and coupons of any one or more series may be expressed
in one or more foreign languages, if also expressed in the English language, and
the English text shall govern the construction thereof and both or all texts
shall constitute only a single obligation. The English text of Senior Notes and
the authentication certificate of the Trustee shall be in the forms set forth in
the Supplemental Indenture creating and establishing such series of Senior Notes
or in a Company Order pursuant to such Supplemental Indenture.
With respect to Senior Notes of a series subject to a periodic
offering, the Supplemental Indenture which creates and establishes such series
or a Company Order pursuant to such Supplemental Indenture may provide general
terms or parameters for Senior Notes of such series and provide either that the
specific terms of particular Senior Notes of such series shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with specified procedures, acceptable to the Trustee, by
which such terms are to be established (which procedures may provide for
authentication and delivery pursuant to oral or electronic instructions from the
Company or any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing).
SECTION 2.02. TERMS OF INITIAL SERIES SENIOR NOTES.
There are hereby created and established [to be supplied] series of
Senior Notes to be issued pursuant to this Indenture, having the respective
series designations, maturity dates and maximum aggregate principal amounts
(subject to Section 2.07 of the Indenture) as follows:
- 20 -
Maximum
Series Designation Maturity Date Principal Amount
[Details of all Series - to be supplied]
The Initial Series Senior Notes shall have the following terms:
(1) The Initial Series Senior Notes shall bear interest at the rate per
annum set forth in their respective titles, from the date of their initial
issuance. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the Initial Series Senior Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of their initial issuance. The interest payment dates
for the Series __ Senior Notes and Series __ Senior Notes shall be ________ and
______ in each year, commencing ___________, 1998. The interest payment dates
for the Series __ Senior Notes and Series __ Senior Notes shall be _________ and
__________ in each year, commencing _________, 1998. The regular record dates
for the interest payable on any interest payment date for the Series __ Senior
Notes and Series __ Senior Notes shall be the ________ and ________ next
preceding such __________ or ___________, as the case may be. The regular record
dates for the interest payable on any interest payment date for the Series __
Senior Notes and Series __ Senior Notes shall be the __________ and _________
next preceding such _______ or _______, as the case may be.
(2) The Initial Series Senior Notes are subject to redemption and
repurchase by the Company in accordance with the terms of Article 3 hereof.
(3) The Initial Series Senior Notes are entitled to the protections of
the covenants contained in Articles 4 and 5 hereof and are subject to the
provisions pertaining to Events of Default contained in Article 6 hereof.
(4) The Initial Series Senior Notes shall be issuable in fully
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The Initial Series Senior Notes shall be
numbered [to be supplied] consecutively upwards, with the second capital letter
of such number corresponding to the applicable series of Senior Notes.
(5) The Initial Series Senior Notes shall be dated as described in
Section 2.03 of the Indenture, except that Initial Series Senior Notes first
issued shall be dated as of the Initial Issuance Date.
(6) Payment of principal of and interest on the Initial Series Senior
Notes will be made in Dollars. Payment of principal of the Initial Series Senior
Notes will be made upon
- 21 -
surrender thereof at the office or agency of the Company maintained for that
purpose in the City and State of New York, and principal and interest may be
paid by check mailed to the address of the Holder as such address shall appear
in the records of the Registrar as of the applicable record date or upon written
request made prior to the applicable record date by a Holder of Initial Series
Senior Notes in an aggregate principal amount in excess of $5,000,000, payments
in respect of such Senior Notes shall be made by wire transfer; provided,
further, that in the case of redemption or repurchase the Company may designate
such other offices or agencies at which Initial Series Senior Notes subject to
such redemption or repurchase may be surrendered for payment.
(7) The Trustee and the Company may from time to time enter into, and
discontinue, an agreement with a clearing agency (the "Securities Depository")
registered under Section 17A of the Exchange Act, which is the registered owner
of all of the Senior Notes of a series, to establish procedures with respect to
the Senior Notes of such series not inconsistent with the provisions of the
Indenture; provided, however, that any such agreement may provide:
(i) that the Senior Notes of such series may be represented by one or
more global certificates;
(ii) that such Securities Depository is not required to present a
Senior Note of such series to the Trustee in order to receive a partial
payment of principal;
(iii) that a legend referring to such agreement shall appear on each
Senior Note of such series so long as the Senior Notes of such series are
subject to such agreement; and
(iv) that provisions for notice to such Securities Depository which are
different from notice provisions in the Indenture, may be set forth
therein.
Neither the Company nor the Trustee will have any responsibility or
obligation to any Securities Depository, to any direct or indirect participant
(a "Participant") in the book entry system of any Securities Depository, or to
the purchasers (the "Beneficial Owners") of an interest in the Senior Notes of
such series from a Participant with respect to (A) the accuracy of any records
maintained by the Securities Depository or by any Participant; (B) the payment
by the Securities Depository or by any Participant of any amount due to any
Beneficial Owner in respect of the principal amount or redemption price of, or
interest on, any Senior Notes of such series; (C) the delivery of any notice by
the Securities Depository or any Participant; (D) the selection of the
Beneficial Owners to receive payment in the event of any partial redemption of
the Senior Notes of such series; or (E) any other action taken by the Securities
Depository or any Participant.
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SECTION 2.03. FORM AND DATING.
The Senior Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibits [to be supplied] through Exhibit [to be
supplied] hereto (which shall be a part of this Indenture) in respect of the
Initial Series Senior Notes, or as specifically provided in the Supplemental
Indenture that creates any other series of Senior Notes or in a Company Order
pursuant to such Supplemental Indenture. The Senior Notes may have notations,
legends or endorsements approved as to form by the Company and required by law,
stock exchange rules and agreements to which the Company is subject or usage.
Each Senior Note shall be dated the date of its authentication, unless otherwise
specifically provided herein or in the Supplemental Indenture that creates a
series of Senior Notes or in a Company Order pursuant to such Supplemental
Indenture. The Senior Notes shall be issuable only in denominations of $1,000
and integral multiples thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture and
of any Supplemental Indenture creating any series of Senior Notes, expressly
agree to such terms and provisions and to be bound thereby.
SECTION 2.04. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Senior Notes for the Company
by manual or facsimile signature. If an Officer of the Company whose signature
is on a Senior Note no longer holds that office at the time a Senior Note is
authenticated, the Senior Note shall nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Senior Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Senior Notes for original issue up to the
aggregate principal amount stated in paragraph 3 of the Initial Series Senior
Notes, or as specifically provided in the Supplemental Indenture that creates
any other series of Senior Notes or in a Company Order pursuant to such
Supplemental Indenture. The aggregate principal amount of Senior Notes
outstanding at any time may not exceed such amount except as provided in Section
2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. An authenticating agent may authenticate
Senior Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company.
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SECTION 2.05. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Senior Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without prior notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fail to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company may act as Paying Agent or Registrar.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Senior Notes.
SECTION 2.06. PAYING AGENT AND TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee or
the Company itself to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal of, or premium, if any, on the Senior Notes, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company) shall have no further
liability for the money delivered to the Trustee. If the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Senior Notes.
SECTION 2.07. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Senior Notes, including the aggregate principal amount of Senior Notes held by
each thereof.
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SECTION 2.08. TRANSFER AND EXCHANGE.
When Senior Notes are presented to the Registrar with a request to
register the transfer or to exchange them for an equal principal amount of
Senior Notes of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met;
provided, however, that any Senior Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar and the
Trustee duly executed by the Holder thereof or by his attorney duly authorized
in writing. To permit registrations of transfer and exchanges, the Company shall
issue and the Trustee shall authenticate Senior Notes at the Registrar's
request, subject to such rules as the Trustee may reasonably require.
Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Senior Notes during a period beginning at
the opening of business on a Business Day 15 days before the day of any
selection of Senior Notes for redemption under Section 3.02 and ending at the
close of business on the day of selection, (ii) to register the transfer of or
exchange any Senior Note so selected for redemption in whole or in part, being
redeemed in part or (iii) to register the transfer or exchange of a Senior Note
between the record date and the next succeeding interest payment date.
No service charge shall be made to any Holder of a Senior Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.12, 3.06, or 9.05 hereof, which shall be paid
by the Company).
Prior to due presentment to the Trustee for registration of the
transfer of any Senior Note, the Trustee, any Agent or the Company may deem and
treat the Person in whose name any Senior Note is registered as the absolute
owner of such Senior Note for the purpose of receiving payment of principal of,
or premium, if any, on such Senior Note and for all other purposes whatsoever,
whether or not such Senior Note is overdue, and neither the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
SECTION 2.09. REPLACEMENT SENIOR NOTES.
If any mutilated Senior Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Senior Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Senior Note if the Trustee's
requirements for replacements of Senior Notes are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to
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protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Senior Note is replaced. The Company
may charge for its expenses in replacing a Senior Note.
Every replacement Senior Note shall constitute a valid obligation of
the Company and shall evidence the same debt as the Senior Note for which it is
a replacement.
SECTION 2.10. OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
Except as set forth in Section 2.11 hereof, a Senior Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Senior
Note.
If a Senior Note is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
SECTION 2.11. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by the Company, any Subsidiary of the Company or any Affiliate of the
Company shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Senior Notes that a Trustee knows are so
owned shall be so considered. Notwithstanding the foregoing, Senior Notes that
are to be acquired by the Company, any Subsidiary of the Company or any
Affiliate of the Company pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by the Company, a Subsidiary of the
Company or an Affiliate of the Company until legal title to such Senior Notes
passes to the Company, such Subsidiary or such Affiliate, as the case may be.
SECTION 2.12. TEMPORARY SENIOR NOTES.
Until definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes upon a written
order of the Company signed by two Officers. Temporary Senior Notes shall be
substantially in the form of definitive Senior Notes but may have variations
that the Company considers appropriate for temporary Senior Notes and as shall
be reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and
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the Trustee, upon a written order of the Company signed by two Officers of the
Company, shall authenticate definitive Senior Notes in exchange for temporary
Senior Notes. Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.13. CANCELLATION.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Senior Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Senior Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Senior Notes (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled Senior
Notes shall be delivered to the Company. The Company may not issue new Senior
Notes to replace Senior Notes that they have paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.14. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Senior Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA ss. 316(c).
SECTION 2.15. CUSIP NUMBER.
The Company in issuing the Senior Notes may use a "CUSIP" number and,
if it does so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Senior Notes and that reliance may be
placed only on the other identification numbers printed on the Senior Notes. The
Company will promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3.
REDEMPTION AND REPURCHASE
SECTION 3.01. CERTAIN SENIOR NOTES REDEEMABLE; NOTICES TO TRUSTEE.
Any Outstanding Senior Notes which are, by their terms, redeemable
before maturity, at the option of the Company or pursuant to the requirements of
this Indenture (or any Supplemental Indenture which created a series of Senior
Notes), may be redeemed at such times, in such amounts and at such prices as may
be specified therein and in accordance with this Article 3.
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If the Company elects to redeem any Initial Series Senior Notes
pursuant to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Senior Notes to be redeemed and (iv) the
redemption price. The notice periods for redemption of other series of Senior
Notes, if different from the foregoing, shall be set forth in the Supplemental
Indenture which creates and establishes such series or a Company Order pursuant
to such Supplemental Indenture.
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Outstanding Senior Notes are to be redeemed at
any time, the Trustee shall select the Senior Notes to be redeemed among the
Holders of the Senior Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Senior Notes are listed or,
if the Senior Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Senior Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Note selected for
partial redemption, the principal amount thereof to be redeemed. Senior Notes
and portions of Senior Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Senior Notes of a Holder are to
be redeemed, the entire outstanding amount of Senior Notes held by such Holder,
even if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Senior Notes
called for redemption also apply to portions of Senior Notes called for
redemption.
In the event the Issuers are required to make an offer to redeem Senior
Notes pursuant to Sections 3.09 and 4.10 hereof and the amount of the Net
Proceeds from the Sale of Assets is not evenly divisible by $1,000, the Trustee
shall promptly refund to the Company at the address set forth in Section 10.02
hereof of any remaining Net Proceeds.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Senior Notes are to be redeemed at its registered address.
The notice shall identify the Senior Notes to be redeemed and shall
state:
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i. the redemption date;
ii. the redemption price;
iii. if any Senior Note is being redeemed in part, the portion
of the principal amount of such Senior Note to be redeemed and that,
after the redemption date, upon surrender of such Senior Note, a new
Senior Note or Senior Notes in principal amount equal to the unredeemed
portion shall be issued upon cancellation of the original Senior Note;
iv. the name and address of the Paying Agent;
v. that Senior Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
vi. that, unless the Company defaults in making such
redemption payment, interest on Senior Notes called for redemption
ceases to accrue on and after the redemption date;
vii. the paragraph of the Senior Notes and/or Section of this
Indenture and/or of the Supplemental Indenture which created the series
of Senior Notes pursuant to which the Senior Notes called for
redemption are being redeemed; and
viii. that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Senior Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Senior Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Senior
Notes or the portions of Senior Notes called for redemption, whether or not such
Senior Notes are presented for payment. If a Senior Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Senior Note was registered at the close of business on such record date. If
any Senior Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Senior
Notes and in Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Senior Note
equal in principal amount to the unredeemed portion of the Senior Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION OF INITIAL SERIES SENIOR NOTES.
(a) Except as provided in subparagraphs (b) and (c) below, the Initial
Series Senior Notes may not be redeemed at the option of the Company prior to
maturity.
(b) The Series [to be supplied] Senior Notes are redeemable by the
Company at any time, in whole or in part, upon not less than 30 nor more than 60
days' notice, in cash at a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest through the redemption date plus
the Make-Whole Premium.
(c) The Company shall not have the option to redeem the Series [to be
supplied] Senior Notes prior to __________, ____. Thereafter, the Company shall
have the option to redeem the Series [to be supplied] Senior Notes, in whole or
in part, upon not less than 30 nor
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more than 60 days' notice, in cash at the redemption prices (expressed as
percentages of the principal amount) set forth below plus accrued and unpaid
interest thereon, if any, to the applicable redemption date, if redeemed during
the twelve-month period beginning on ________ of the years indicated below:
YEAR PERCENTAGE
[Details for all series - to be supplied]
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.15 hereof, the Company
shall not be required to make mandatory repurchase, redemption or sinking fund
payments with respect to the Initial Series Senior Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of Senior Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Senior Notes tendered in response to the
Asset Sale Offer. Payment for any Senior Notes so purchased shall be made in the
same manner as interest payments are made.
The Company shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including Rule 14e-1, in connection with any
offer required to be made by the Company to repurchase the Senior Notes as a
result of an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 3.09,
the Company shall comply with the applicable securities laws or regulations and
shall not be deemed to have breached its obligations hereunder by virtue
thereof.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose
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name a Senior Note is registered at the close of business on such record date,
and no additional interest shall be payable to Holders who tender Senior Notes
pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Senior Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Senior Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Senior Note purchased pursuant to
an Asset Sale Offer may elect only to have all of such Senior Note
purchased and may not elect to have only a portion of such Senior Note
purchased;
(f) that Holders electing to have a Senior Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Senior Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Senior Note completed, or transfer by book-entry transfer, to the
Company, a depositary (if appointed by the Company) or a Paying Agent at
the address specified in the notice at least three days before the Purchase
Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receive,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Senior Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Senior
Note purchased;
(h) that, if the aggregate principal amount of Senior Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Senior
Notes to be
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purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by theCompany so that only Senior Notes in denominations of
US$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Senior Notes were purchased only in part shall
be issued new Senior Notes equal in principal amount to the unpurchased
portion of the Senior Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Senior Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Senior Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Senior Notes or portions thereof were accepted for payment by the Company
in accordance with the terms of this Section 3.09. The Company, the depositary
or the Paying Agent, as the case may be, shall promptly (but in any case not
later than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Senior Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Senior Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Senior Note to such
Holder, in a principal amount equal to any unpurchased portion of the Senior
Note surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof. No repurchase of Senior Notes under this
Section 3.09 shall be deemed to be a redemption of Senior Notes.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR NOTES.
The Company shall pay or cause to be paid the principal of and premium,
if any, and interest on the Senior Notes on the dates and in the manner provided
in the Senior Notes. Principal, and premium, if any, shall be considered paid on
the date due if the Paying Agent, if other than the Company, holds as of 10:00
a.m. Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, and
premium, if any, then due. Such Paying Agent shall return to the Company, no
later than five Business Days following the date of payment, any money
(including accrued interest) that exceeds such amount of principal of, premium,
if any, and interest required to be paid on the Senior Notes.
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The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
at the rate equal to 1% per annum in excess of the then applicable interest rate
on the Senior Notes to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Senior Notes may be surrendered
for registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Senior Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.05.
SECTION 4.03. REPORTS.
The Company shall file with the Trustee, within 15 days of filing them
with the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) that the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is
not subject to the requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall nevertheless file with the SEC and the Trustee, on the date upon
which it would have been required to file with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditor's
report by a firm of established national reputation, upon which the Trustee may
conclusively rely), and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," both comparable to that which the Company
would have been required to include in such annual reports, information,
documents or other reports if the Company were subject to the requirements of
Section 13 or 15(d) of the Exchange Act; provided, however, that the Company
shall
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not be required to register under the Exchange Act by virtue of this provision,
if it were not otherwise required to do so.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company and its Restricted Subsidiaries have
kept, observed, performed and fulfilled their obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of the Senior Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Chartered Accountants, the year-end financial statements
delivered pursuant to Section 4.03(a) above shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company have violated any of the
financial provisions of Sections 4.01, 4.07, 4.09 and 4.12 or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Senior Notes.
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SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
Prior to the Investment Grade Date, the Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly, (i)
declare or pay any dividend or make any cash dividend or other distribution on
account of the Company's or any of its Restricted Subsidiaries' Equity
Interests, including, without limitation, any payment in connection with any
merger or consolidation involving the Company (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or any portion of a dividend or distribution by a Restricted Subsidiary
of the Company that is payable to the Company or to any Wholly-Owned Restricted
Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire
for value from any Person other than the Company or a Wholly-Owned Restricted
Subsidiary any Equity Interests of the Company, any of its Subsidiaries or any
direct or indirect parent of the Company (other than the conversion or exchange
of Equity Interests of the Company for other Equity Interests of the Company);
or (iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Subordinated Indebtedness, except at
final maturity; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payments:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) except in the case of any Restricted Investment, the Company would,
at the time of such Restricted Payment, and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have a Fixed Charge Coverage Ratio of not less
than 1.75 to 1 (calculated pursuant to Section 4.09 below); and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after
the Initial Issuance Date (excluding Restricted Payments permitted by clauses
(iii), (iv), (v), (vi) or (vii) of the next succeeding
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paragraph), is less than the sum of (i) $50,000,000, plus (ii) 25% of an amount
equal to the Operating Cash Flow of the Company for the period (taken as one
accounting period) from the day after the Initial Issuance Date through the end
of the Company's most recently ended fiscal quarter for which financial
statements are available at the time of such Restricted Payment (or, if such
Operating Cash Flow for such period is a deficit, less 100% of such deficit),
plus (iii) 100% of the aggregate net cash proceeds received by the Company from
the issuance or sale (other than pursuant to the IPP Buyout) after the Initial
Issuance Date of Equity Interests of the Company or of debt securities of the
Company that have been converted into Equity Interests of the Company, plus (iv)
100% of the aggregate cash proceeds received by the Company from any payment in
respect of any previously made Restricted Investment (but only to the extent
that such amount is not reflected in Consolidated Net Income).
The foregoing provisions shall not prohibit (i) the payment of
dividends, whether paid in kind or in cash, or the satisfaction of mandatory
redemption obligations, in respect of any Preferred Stock outstanding on the
Initial Issuance Date in accordance with the terms thereof; (ii) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Section 4.07, (iii) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of, other Equity Interests of the Company; (iv) defeasance,
redemption or repurchase of Subordinated Indebtedness with the net cash proceeds
of the substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of Equity Interests of the Company or from an incurrence of
Permitted Refinancing Indebtedness that consists of Subordinated Indebtedness,
provided that the amount of any net cash proceeds that are utilized for any
redemption, repurchase, retirement or other acquisition described in clauses
(iii) and (iv) shall be excluded from clause (c)(iii) of the first paragraph of
this Section 4.07; (v) the repurchase, redemption, or other acquisition or
retirement for value of any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by any member of the Company's (or any of its
Restricted Subsidiaries') management or for the purpose of providing Equity
Interests for issuance under dividend reinvestment or employee benefits plans of
the Company; (vi) any spin-off or other distribution to shareholders of the
Generating Assets or the Oswego Plant or any portion thereof or any direct or
indirect interest therein; and (vii) any dividend or other distribution of the
Capital Stock of any Unrestricted Subsidiary, provided that in the case of each
of clauses (i) and (ii) above, no Default or Event of Default shall have
occurred and be continuing immediately after such transaction.
Not later than the date of making any Restricted Payment that relies on
clause (c) of the first paragraph of this covenant to be permitted, and so long
as the limitations contained in such clause applies, the Company shall deliver
to the Trustee an Officer's Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
such covenant were computed, which calculations may be based upon the Company's
latest available financial statements.
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SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such Restricted Subsidiary to (a) (i) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (A) on its
Capital Stock or (B) with respect to any other interest or participation in, or
measured by, its profits or (ii) pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries, (b) make loans or advances to the Company or any
of its Restricted Subsidiaries or (c) transfer any of its properties or assets
to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) the First
Mortgage Bonds, the Credit Facility, the Receivables Financing, the Pollution
Control Obligations, the Securitization Transaction, the Indenture and the
Senior Notes; (ii) applicable law or regulation; (iii) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; (iv) by reason of customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practice; (v) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (c) above in the property so acquired; (vi) any
contract for the sale of 100% of the Capital Stock of a Restricted Subsidiary;
or (vii) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive that those contained in the agreements governing the
Indebtedness being refinanced.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS.
Prior to the Investment Grade Date, the Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly create,
incur, issue, assume, guaranty or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, "Incur"), any
Indebtedness (including Acquired Debt) or issue any Disqualified Stock;
provided, however, that the Company and any of its Restricted Subsidiaries may
incur Indebtedness (including Acquired Debt) and issue Disqualified Stock if the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which financial statements are available immediately
preceding the date on which such Indebtedness is incurred or Disqualified Stock
is issued would have been at least 3.25 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if such
Indebtedness had been incurred or such Disqualified Stock had been issued at the
beginning of such four-quarter period.
The foregoing provisions will not apply to (i) Permitted Refinancing
Indebtedness; (ii) the incurrence by the Company of any amount of Subordinated
Indebtedness and up to $400 million
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of Senior Indebtedness after the Initial Issuance Date if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which financial statements are available immediately preceding the date on
which such Indebtedness is incurred would have been at least 1.75 to 1
(determined as in the immediately preceding paragraph); (iii) Permitted Hedging
Agreements; (iv) borrowings under the Credit Facility in an amount not to exceed
$_______; and (v) intercompany Indebtedness between and among the Company and
any of its Restricted Subsidiaries; provided, however, that (A) any subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than a Restricted Subsidiary and (B) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Company or such Restricted Subsidiary,
as the case may be.
SECTION 4.10. PROCEEDS OF CERTAIN ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in a (A) Permitted Asset Swap unless the Company or
Restricted Subsidiary receives property or assets with a Fair Value at least
equal to the Fair Value of the property or assets swapped or (B) Sale of Assets
unless (i) the Company (or the applicable Restricted Subsidiary, as the case may
be) receives consideration at the time of such Sale of Assets at least equal to
the Fair Value (evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) except in connection
with a sale of the Nuclear Generating Assets or the Oswego Plant, at least 75%
of the consideration received therefor by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents; provided that if in the
case of the sale of any non-Nuclear Generating Asset pursuant to the PowerChoice
Agreement, the Board of Directors determines in good faith that the Company will
receive the highest price by accepting a bid with consideration consisting of
less than 75% cash or Cash Equivalents, and the PSC approves the Company's
acceptance of such bid, then the Company may accept such bid, and provided
further, that in the case of any Sale of Assets (except a Securitization
Transaction) that is consummated after the Investment Grade Date, the
requirement of clause (ii) shall not apply. For purposes of determining the
Company's compliance with the requirements of the immediately preceding
sentence, the amount of (x) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Senior Notes) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement or that
otherwise releases the Company or such Restricted Subsidiary from further
liability and (y) any notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are immediately converted
by the Company or such Restricted Subsidiary into cash shall be deemed to be
cash for purposes of this provision (to the extent of the cash received).
- 39 -
Within 180 days after the receipt of any Net Proceeds from a
Securitization Transaction or a Sale of Assets consisting of Generating Assets,
or within 360 days after the receipt of any NetProceeds from any other Sale of
Assets that is consummated prior to the Investment Grade Date, the Company shall
(a) in the case of a Securitization Transaction, apply the cash portion of such
Net Proceeds in accordance with the relevant statutory or regulatory
requirements that govern such transaction or, if there are no such requirements,
to reduce Senior Indebtedness, (b) in the case of a sale or other disposition of
Generating Assets or the Oswego Plant, use not less than 85% (or 100% if the
accepted bid requires less than 75% of the purchase price to be paid in cash or
Cash Equivalents) of the cash portion of such Net Proceeds to reduce Senior
Indebtedness, and (c) in the case of any other Sale of Assets that is
consummated prior to the Investment Grade Date, use 100% of such Net Proceeds
for one or more of the following: (i) to reduce Senior Indebtedness, (ii) to
reinvest, or enter into an agreement with respect to the reinvestment of, such
Net Proceeds in Related Assets, or (iii) make an offer to all Holders of Senior
Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Senior
Notes that may be purchased out of such Net Proceeds, at an offer price in cash
in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase, in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate amount
of Senior Notes tendered pursuant to an Asset Sale Offer is less than the amount
of such Net Proceeds, the Company may use any remaining Net Proceeds for general
corporate purposes. If the aggregate principal amount of Senior Notes
surrendered by Holders thereof exceeds the amount of such Net Proceeds, the
Trustee shall select the Senior Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Net Proceeds shall be reset
at zero. Pending the final application of any such Net Proceeds, the Company may
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture.
SECTION 4.11. TRANSACTION WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
their properties or assets to, or purchase any property or assets from, or enter
into or make or amend any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Company or
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $50.0 million, an opinion as to the
fairness to the Company or such Subsidiary of such Affiliate Transaction from a
financial point of view issued by a nationally recognized expert in evaluating
such transactions;
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provided that (v) any employment agreement entered into by the Company or its
Subsidiaries in the ordinary course of business, (w) commercial transactions in
the ordinary course of the utility business between or among the Company and/or
its Restricted Subsidiaries, (x) Restricted Payments that are permitted by
Section 4.07, (y) agreements or transactions entered into in connection with a
Securitization Transaction or the Receivables Financing and (z) following any
holding company reorganization, transactions between the Company and its
Restricted Subsidiaries and the Company's parent that are on terms permitted by
the PSC, shall not be deemed Affiliate Transactions.
SECTION 4.12. LIENS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, secure with a Lien on the property or
assets of the Company or such Restricted Subsidiary, Other Indebtedness or
Subordinated Indebtedness without making, or causing such Restricted Subsidiary
to make, effective provision for securing the Senior Notes (i) in the case of a
Lien securing Other Indebtedness, on an equal and ratable basis with the Lien
securing such Other Indebtedness and (ii) in the case of a Lien securing
Subordinated Indebtedness, on a basis such that the Lien securing the Senior
Notes is senior in priority to the Lien securing such Subordinated Indebtedness,
in each case until such time as such Other Indebtedness or Subordinated
Indebtedness is no longer secured by a Lien.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Senior
Notes.
SECTION 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL TRIGGERING EVENT.
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder of Senior Notes will have the right to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Senior Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase (the "Change of
- 41 -
Control Payment"). Within thirty days following any Change of Control Triggering
Event, the Company shall mail a notice to each Holder describing the transaction
or transactions that constitute the Change of Control Triggering Event and
offering to repurchase Senior Notes pursuant to the procedures described in this
Section and described in such notice. The notice will state: (1) that the Change
of Control Offer is being made pursuant to this Section 4.14 and that all Senior
Notes tendered will be accepted for payment; (2) the purchase price and the
purchase date, which shall be at least 30 but not more than 60 days from the
date such notice is mailed (the "Change of Control Payment Date"); (3) that any
Senior Note not tendered will continue to accrue interest; (4) that, unless the
Company defaults in the payment of the Change of Control Payment, all Senior
Notes accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have any Senior Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Senior Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Senior Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Senior Notes delivered for purchase, and a statement that
such Holder is withdrawing his election to have the Senior Notes purchased; and
(7) that Holders whose Senior Notes are being purchased only in part will be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior Notes surrendered, which unpurchased portion must be equal to $1,000
in principal amount or an integral multiple thereof. The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Senior Notes
as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Senior Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Senior Notes or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Senior Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Senior Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
each Holder of Senior Notes so tendered the Change of Control Payment for such
Senior Notes, and the Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered, if
any; provided that each such new Senior Note will be in a principal amount of
$1,000 or an integral multiple thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
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(c) The Company shall not be required to make a Change of Control Offer
upon a Change of Control Triggering Event if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in Sections 4.14(a) and 4.14(b) hereof and purchases all
Senior Notes validly tendered and not withdrawn under such Change of Control
Offer.
SECTION 4.15. PAYMENTS FOR CONSENTS.
Neither the Company nor any of its Subsidiaries may, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Senior Note of any series for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or such Senior Notes unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Senior Notes of
that series that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
So long as the Senior Notes are outstanding, the Company may not,
directly or indirectly, consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all its assets in one or more
related transactions, to another Person unless (i) the corporation formed by
such consolidation or surviving in such merger or the Person that acquires by
sale, assignment, transfer, conveyance or other disposition, or that leases,
such assets (in each such case, the "Successor Entity"), is a corporation
organized and existing under the laws of the United States, any State thereof or
the District of Columbia and expressly assumes the Company's obligations under
the Indenture and the Notes; (ii) immediately before and after such transaction
no Default or Event of Default exists; and (iii) the Successor Entity (or the
Company, in the case of a consolidation or merger in which the Company is the
surviving entity) (A) has Consolidated Net Worth immediately after the
transaction (but prior to any revaluation or recalculation of Consolidated Net
Worth as of the date of the transaction relating to a carry-over basis (if any)
of the assets acquired in the transaction (as determined in accordance with
GAAP)) equal to or greater than the Consolidated Net Worth of the Company
immediately prior to the transaction and (B) will, at the time of such
transaction and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, have a Fixed
Charge Coverage Ratio of not less than 1.75 to 1 (calculated pursuant to Section
4.09 above); provided that the limitations set forth in this clause (iii) shall
not apply following the Investment Grade Date or to any merger or consolidation
of the Company with
- 43 -
or into a Restricted Subsidiary and provided further, that the limitations set
forth above shall not apply to the sale or disposition by the Company of the
Generating Assets or the Oswego Plant.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, amalgamation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.01
hereof, the successor corporation formed by such consolidation or amalgamation
or into or with which the Company is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
amalgamation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation), and may exercise every right and power of the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the principal of, and
premium, if any, on the Senior Notes except in the case of a transaction that
meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default by the Company for 60 days in the payment when due of
interest on the Senior Notes;
(ii) default by the Company in the payment when due of the
principal of, or premium, if any, on the Senior Notes;
(iii) failure by the Company to comply with Sections 4.07, 4.09 or
5.01 hereof;
(iv) failure by the Company for 60 days after written notice to
the Company by the Trustee, or written notice to the Company and the
Trustee by the Holders of 25% or more in an aggregate principal amount
of the Senior Notes, to comply with any of its agreements in the
Indenture or the Senior Notes;
- 44 -
(v) default by the Company under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date
hereof, which default (a) is caused by a failure to pay the principal
of such Indebtedness at the stated maturity of such Indebtedness after
the expiration of the grace period provided in such Indebtedness (a
"Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its stated maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $50.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries
to pay a final judgment or final judgments not otherwise covered by
insurance for the payment of money entered by a court or courts of
competent jurisdiction against the Company or any of its Subsidiaries
and such judgment or judgments are not paid, discharged or stayed for a
period of 60 days, provided that the aggregate of all such undischarged
judgments exceeds $50.0 million;
(vii) the Company or any of its Significant Subsidiaries pursuant
to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary Case,
(b) consents to the entry of an order for relief against it
in an involuntary Case,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due; or
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary Case;
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(b) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or
(c) orders the liquidation of the Company or any of its
Significant Subsidiary; and, in each case, the order or decree
remains unstayed and in effect for 60 consecutive days.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law. The term "Case" means an
application, petition, action, case or other proceeding (including the filing of
a notice of intention to file a proposal) before any court, tribunal or other
governmental authority under any applicable Bankruptcy Law (foreign or
domestic).
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding payment
of the premium that the Company would have had to pay if the Company then had
elected to redeem the Senior Notes pursuant to Sections 3.07 or 4.14 hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Senior Notes, anything in
this Indenture or in the Senior Notes to the contrary notwithstanding. If an
Event of Default occurs by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Series [to be supplied] Senior Notes, or with
the intention of avoiding the prohibition on redemption of the Series [to be
supplied] Senior Notes prior to [to be supplied], pursuant to Section 3.07
hereof, then the premium set forth below will become immediately due and payable
to the extent permitted by law upon the acceleration of the Senior Notes. The
premium payable for purposes of this paragraph for each of the years beginning
on [to be supplied] of the years set forth below shall be as set forth in the
following table expressed as a percentage of the amount that would otherwise be
due but for the provisions of this sentence, plus accrued interest, if any, to
the date of payment:
Year Percentage
[To be supplied.]
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (vii) or (viii) of Section 6.01 hereof with respect to the Company or any
Significant Subsidiary) occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding
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Senior Notes of any series affected by an Event of Default may declare all the
Senior Notes of such Series to be due and payable immediately. Upon any such
declaration, the Senior Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (vii)
or (viii) of Section 6.01 hereof occurs with respect to the Company or any of
its Significant Subsidiaries, all outstanding Senior Notes shall be due and
payable immediately without further action or notice. The Holders of a majority
in aggregate principal amount of the then outstanding Senior Notes of any series
affected by an Event of Default by written notice to the Trustee may on behalf
of all of the Holders of such series rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived. Except as provided in Section 6.01 hereof, in the event of any
such acceleration of Senior Notes, the Company will become obligated to pay the
aggregate principal amount of the Senior Notes immediately.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, and premium, if any,
on the Senior Notes or to enforce the performance of any provision of the Senior
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Senior Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Senior Notes that would be materially adversely affected by
such waiver by notice to the Trustee may on behalf of the Holders of all of the
Senior Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
interest on, or the principal of, or premium of, if any, the Senior Notes. 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.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Senior Notes of any series affected by an Event of Default may direct the time,
method and place of conducting any
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proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to tile rights of other Holders of Senior Notes or
that may involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Senior Note may pursue a remedy with respect to this
Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Senior Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the rights of
another Holder of a Senior Note or to obtain a preference or priority over
another Holder of a Senior Note.
SECTION 6.07. RIGHTS OF HOLDERS OF SENIOR NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Senior Note to receive payment of principal and premium, if any, on
the Senior Note, on or after the respective due dates expressed in the Senior
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express
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trust against the Company for the whole amount of principal of, and premium, if
any, remaining unpaid on the Senior Notes and interest on overdue principal and,
to the extent lawful, 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.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and 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 the
Holders of the Senior Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Senior Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Senior
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. TRUSTEE MAY FILE PROOFS OF CLAIM.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on the
Senior Notes for principal, and premium, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Senior
Notes for principal, and premium, if any, respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Senior Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party,
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Senior Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and any Supplemental
Indenture; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01 and the requirements of the TIA.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith and without
negligence in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Senior Notes, it shall not be accountable for the
Company's use of the proceeds from the Senior Notes or any money paid to the
Company or upon the Company's direction under any provision of this it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
of the Company in this Indenture or any statement in the Senior Notes or any
other document in connection with the sale of the Senior Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Senior Notes a notice
of the Default or Event of Default within 45 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, or premium, if
any, or interest on any Senior Note the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Senior Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date hereof, and for so long as Senior Notes remain outstanding, the Trustee
shall mail to the Holders of the Senior Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a). The Trustee also shall comply
with TIA ss. 313(b). The Trustee shall also transmit by mail all reports as
required by TIA ss. 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to the Holders of Senior Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Senior Notes are listed in accordance with TIA ss. 313(d). The Company
shall promptly notify the Trustee when the Senior Notes are listed on any stock
exchange.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel, except such compensation,
disbursements and expenses as may be attributable to its negligence or bad
faith.
The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next paragraphs. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Senior Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Senior Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Senior Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Senior
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Senior Note
who has been a Holder of a Senior Note for at least six months, fails to comply
with Section 7. 10, such Holder of a Senior Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Senior Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
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SECTION 7.10. ELIGIBILITY, DISQUALIFICATION.
The final paragraph of this Section shall not be operative as a part of
this Indenture until this Indenture is qualified under the TIA and until such
qualification this Indenture shall be construed as if said paragraph were not
contained herein.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311 (b). A Trustee that has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Senior Notes of
any series upon compliance with the conditions set forth below in this Article
Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior Notes of
any series on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Senior Notes of such series, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior Notes
and this Indenture (and the Trustee, on demand of
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and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Senior Notes of such series to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, and premium, if any, and interest on
such Senior Notes when such payments are due from the funds held by the Trustee
in the trust, (b) the Company's obligations with respect to such Senior Notes of
such series under Sections 2.06, 2.08, 2.09, 2.12 and 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee under this
Indenture and the Company's obligations in connection therewith and (d) the
obligations of the Company under this Article Eight. Subject to compliance with
this Article Eight, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.14 and Article 5 hereof with respect to the outstanding Senior
Notes of any series on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and such Senior Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Senior Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Senior
Notes of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Senior Notes of such series shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(iii) through 6.01(vii) hereof shall not
constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Senior Notes, cash in Dollars,
Government Securities or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest
on the outstanding Senior Notes on the stated maturity for payment thereof
or on the applicable redemption date, as the case may be, and the Company
must specify whether the Senior Notes are being defeased to maturity or to
a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or (B) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Senior Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the outstanding
Senior Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Senior Notes pursuant to
this Article Eight concurrently with such incurrence) or insofar as
Sections 6.01(vii) and (viii) hereof are concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries are parties or by which the Company or any of its
Subsidiaries are bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
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(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Senior Notes over any other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for, in the case of the Officers' Certificate, clauses
(a) through (g), and, in the case of the Opinion of Counsel, clauses (b),
(c), (e) and (f), have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SENIOR NOTES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Senior
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Senior Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Senior Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Senior Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT OF COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, or premium, if
any, or interest on any Senior Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest has
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become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Senior Note shall thereafter, as a secured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Dollars or
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Senior Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Company make any payment of
principal of, premium, if any, or interest on any Senior Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Senior Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Senior Notes, and enter
into Supplemental Indentures hereto which shall thereafter form a part hereof,
without the consent of any Holder of a Senior Note, for any one or more of the
following purposes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to secure the Senior Notes on an equal and ratable or senior basis
with Other Indebtedness or Subordinated Indebtedness as required by Section 4.12
hereof;
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(c) to establish and create one or more series of Senior Notes (in
addition to the Initial Series Senior Notes) and to specify certain terms of
such series of Senior Notes, which terms may include, but are not limited to,
those set forth in Section 2.01, all in a manner not inconsistent with the
provisions of this Indenture;
(d) to provide that the Company shall not issue any additional Senior
Notes or to add conditions, limitations and restrictions on the Company with
respect to any series of Senior Notes under this Indenture;
(e) to add additional covenants and agreements of the Company to this
Indenture, or to add to the Events of Default specified in Section 6.01
additional Events of Default, or to surrender any right or power herein reserved
to or conferred upon the Company pursuant to this Indenture.
(f) to provide for alternative methods or forms for evidencing and
recording the ownership of Senior Notes;
(g) to provide for the assumption of the Company's obligations to the
Holders of the Senior Notes in the case of a merger, amalgamation, consolidation
or sale of all or substantially all of the assets pursuant to Article Five
hereof;
(h) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Senior Notes;
(i) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or Supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or Supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SENIOR NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture, and the Senior Notes, and enter
into Supplemental Indentures
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hereto which shall thereafter form a part hereof, with the consent of the
Holders of at least a majority in principal amount of the Senior Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Senior Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, or interest on, the Senior Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Senior Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Senior
Notes (including consents obtained in connection with a tender offer or exchange
offer for the Senior Notes); provided, however, that if there shall be Senior
Notes of more than one series outstanding and if the proposed action to be taken
will materially adversely affect the rights of holders of Senior Notes of one or
more of such series, then the consent (including consents obtained in connection
with a tender offer or exchange offer for Senior Notes) only of holders of a
majority in aggregate principal amount of outstanding Senior Notes of all series
so affected, considered as one class, shall be required.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or Supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Senior Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or
Supplemental Indenture unless such amended or Supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or Supplemental Indenture.
It shall not be necessary for the consent of the Holders of Senior
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Senior Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
Supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Senior Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture, the Senior Notes or any Supplemental Indenture.
However, without the consent of each Holder affected, an amendment, waiver or
Supplemental Indenture may not (with respect to any Senior Notes held by a
non-consenting Holder):
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(a) reduce the principal amount of Senior Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Senior
Note or alter or waive any of the provisions with respect to the redemption
of the Senior Notes except as provided above with respect to Sections 3.09,
4.10 and 4.14 hereof;
(c) reduce the rate of or change the time for payment of interest on
any Senior Note;
(d) after the obligation has arisen for the Company to make an offer to
purchase following the occurrence of a Change of Control or Sale of Assets,
alter the obligation to purchase the Senior Notes in accordance with such
offer to purchase or waive any default in the performance thereof;
(e) waive a Default or Event of Default in the payment of principal of,
or interest on, the Senior Notes (except a rescission of acceleration of
the Senior Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Senior Notes and a waiver of the
payment default that resulted from such acceleration);
(f) make any Senior Note payable in money other than that stated in the
Senior Notes;
(g) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Senior Notes to
receive payments of principal of, or interest on, the Senior Notes;
(h) waive a redemption payment with respect to any Senior Note (other
than a payment required by Sections 4.10 or 4.14 hereof); or
(i) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Senior Notes
shall be set forth in an amended or Supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Senior Note is a continuing consent by the Holder of a
Senior Note and every subsequent
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Holder of a Senior Note or portion of a Senior Note that evidences the same debt
as the consenting Holder's Senior Note, even if notation of the consent is not
made on any Senior Note. However, any such Holder of a Senior Note or subsequent
Holder of a Senior Note may revoke the consent as to its Senior Note if the
Trustee receives written notice of revocation before the date the waiver,
Supplemental Indenture or amendment becomes effective. An amendment,
Supplemental Indenture or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
The Company may fix a record date for determining which Holders of
Senior Notes must consent to such Supplemental Indenture, amendment or waiver.
If the Company fixes a record date, the record date shall be fixed at (i) the
later of 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders of Senior Notes furnished to the Trustee prior
to such solicitation pursuant to Section 2.07, or (ii) such other date as the
Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES.
The Trustee may place an appropriate notation about an amendment,
Supplemental Indenture or waiver on any Senior Note thereafter authenticated.
The Company in exchange for all Senior Notes may issue and the Trustee shall
authenticate new Senior Notes that reflect the amendment, Supplemental Indenture
or waiver.
Failure to make the appropriate notation or issue a new Senior Note
shall not affect the validity and effect of such amendment, Supplemental
Indenture or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or Supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or Supplemental Indenture until its Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or Supplemental Indenture is
authorized or permitted by this Indenture and that all conditions precedent have
been complied with.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any Supplemental Indenture under this Article 9,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith and such Supplemental Indenture shall be and shall be
deemed to be a part of the terms and conditions of this Indenture for all
purposes; and every Holder of Senior Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby, except to the
extent that the terms of such
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Supplemental Indenture relate solely to one or more particular series of Senior
Notes identified therein. In the event of any inconsistency between the
Indenture and the terms of any Supplemental Indenture, the terms of such
Supplemental Indenture shall control.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Niagara Mohawk Power Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
If to the Trustee:
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt
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acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, they shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF SENIOR NOTES WITH OTHER HOLDERS OF
SENIOR NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Senior Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied, provided, however, that with
respect to matters of fact, an Opinion of Counsel may rely upon an
Officer's Certificate or a certificate of a public official.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Senior Notes or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Notes.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE SENIOR NOTES.
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SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Senior Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Senior Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
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SIGNATURES
NIAGARA MOHAWK POWER CORPORATION
By:
------------------------------------
Name:
Title:
Attest:
------------------------------
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
Trustee
By:
------------------------------------
Name:
Title:
Attest:
-------------------------------
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