NRG ENERGY, INC.
to
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
----------------------
INDENTURE
Dated as of January 31, 1996
----------------------
$125,000,000
7.625% Senior Notes Due 2006
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Certain Terms Defined................................................. 1
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
2.1 Authentication and Delivery of Securities.............................. 7
2.2 Execution of Securities................................................ 8
2.3 Certificate of Authentication.......................................... 8
2.4 Form, Denomination and Date of Securities; Payments of Interest........ 8
2.5 Global Securities..................................................... 11
2.6 Registration, Registration of Transfer and Exchange................... 12
2.7 Mutilated, Defaced, Destroyed, Lost and Stolen Securities............. 17
2.8 Cancellation of Securities; Destruction Thereof....................... 18
2.9 Temporary Securities.................................................. 18
2.10 Computation of Interest............................................... 19
ARTICLE III
COVENANTS OF
THE ISSUER AND THE TRUSTEE
3.1 Payment of Principal and Interest..................................... 19
3.2 Offices for Payments, etc............................................. 19
3.3 Appointment to Fill a Vacancy in Office of Trustee.................... 19
3.4 Paying Agents......................................................... 20
3.5 Certificate to Trustee................................................ 20
3.6 Securityholder's Lists................................................ 20
3.7 Reports by the Issuer................................................. 21
3.8 Limitation on Liens................................................... 21
i
3.9 Net Worth............................................................. 22
3.10 Repurchase of Securities Upon a Change of Control..................... 22
ARTICLE IV
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. 23
4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt......... 26
4.3 Application of Proceeds............................................... 28
4.4 Suits for Enforcement................................................. 28
4.5 Restoration of Rights on Abandonment of Proceedings................... 29
4.6 Limitations of Suits by Securityholders............................... 29
4.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default........................................................... 29
4.8 Control by Securityholders............................................ 30
4.9 Waiver of Past Defaults............................................... 30
4.10 Rights of Holders to Receive Payment.................................. 31
ARTICLE V
CONCERNING THE TRUSTEE
5.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default........................................................... 31
5.2 Certain Rights of the Trustee......................................... 32
5.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof................................... 33
5.4 Trustee and Agents May Hold Securities; Collections, etc.............. 33
5.5 Moneys Held by Trustee................................................ 33
5.6 Compensation and Indemnification of Trustee and Its Prior Claim....... 34
5.7 Right of Trustee to Rely on Officers' Certificate, etc................ 34
5.8 Persons Eligible for Appointment as Trustee........................... 34
5.9 Resignation and Removal; Appointment of Successor Trustee............. 34
5.10 Acceptance of Appointment by Successor Trustee........................ 35
5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee 36
ARTICLE VI
CONCERNING THE SECURITYHOLDERS
6.1 Evidence of Action Taken by Securityholders........................... 37
6.2 Proof of Execution of Instruments and of Holding of Securities Record
Date.............................................................. 37
6.3 Holders to Be Treated as Owners....................................... 37
6.4 Securities Owned by Issuer Deemed Not Outstanding..................... 37
6.5 Right of Revocation of Action Taken................................... 38
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ARTICLE VII
SUPPLEMENTAL INDENTURES
7.1 Supplemental Indentures Without Consent of Securityholders............ 38
7.2 Supplemental Indentures With Consent of Securityholders............... 39
7.3 Effect of Supplemental Indenture...................................... 40
7.4 Documents to Be Given to Trustee...................................... 40
7.5 Notation of Securities in Respect of Supplemental Indentures.......... 40
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
8.1 Covenant Not to Merge, Consolidate, Sell or Transfer Assets Except
Under Certain Conditions.......................................... 41
8.2 Successor Corporation Substituted..................................... 41
8.3 Opinion of Counsel to Trustee; Officers' Certificate.................. 42
ARTICLE IX
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
9.1 Satisfaction and Discharge of Indenture............................... 42
9.2 Application by Trustee of Funds Deposited for Payment of Securities... 43
9.3 Repayment of Moneys Held by Paying Agent.............................. 43
9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years............................................................. 43
9.5 Defeasance and Discharge of Indenture................................. 44
9.6 Defeasance of Certain Obligations..................................... 45
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt
from Individual Liability......................................... 46
10.2 Provisions of the Indenture for the Sole Benefit of Parties and
Securityholders................................................... 46
10.3 Successors and Assigns of Issuer Bound by Indenture.................. 46
10.4 Notices and Demands on Issuer, Trustee and Securityholders........... 47
10.5 Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein................................................. 47
10.6 Payments Due on Saturdays, Sundays and Holidays...................... 48
10.7 New York Law to Govern............................................... 48
10.8 Counterparts......................................................... 48
10.9 Effect of Headings................................................... 48
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ARTICLE XI
REDEMPTION OF SECURITIES
11.1 Right of Optional Redemption Price................................... 49
11.2 Notice of Redemption................................................. 49
11.3 Payment of Securities Called for Redemption.......................... 49
iv
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF RESTRICTED PERIOD CERTIFICATE
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM RULE 144A GLOBAL SECURITY OR IAI GLOBAL SECURITY TO
RESTRICTED REGULATION S GLOBAL SECURITY
EXHIBIT D FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM RULE 144A GLOBAL SECURITY OR IAI GLOBAL SECURITY TO
UNRESTRICTED REGULATION S GLOBAL SECURITY
EXHIBIT E FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM RESTRICTED REGULATION S GLOBAL SECURITY,
UNRESTRICTED REGULATION S GLOBAL SECURITY OR IAI GLOBAL
SECURITY TO RULE 144A GLOBAL SECURITY
EXHIBIT F FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM RULE 144A GLOBAL SECURITY, RESTRICTED REGULATION S
GLOBAL SECURITY OR UNRESTRICTED REGULATION S GLOBAL
SECURITY TO IAI GLOBAL SECURITY
v
INDENTURE, dated as of January 31, 1996 from NRG ENERGY,
INC., a Delaware corporation (herein called the "Issuer"), to NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue of
$125,000,000 aggregate principal amount of its 7.625% Senior Notes Due 2006
(the "Securities") and, to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Securities, when
executed by the Issuer and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Issuer, and to constitute these presents a valid indenture and agreement
according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders (as defined herein) thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided) for all purposes of this Indenture
shall have the respective meanings specified in this Section. All accounting
terms used herein and not expressly defined shall have the meanings given to
them in accordance with GAAP (as defined herein). The words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.
"Agent Members" has the meaning set forth in Section 2.4(c).
"Applicable Premium" means, with respect to a Security at
any time, the excess (if any) of (i) the sum of the present values of all of
the remaining scheduled payments of principal of and interest on the
Securities from the applicable redemption date through the Stated Maturity of
such Security, computed on a semi-annual basis by discounting such payments
(assuming a 360-day year consisting of twelve 30-day months and using a rate
equal to the Treasury Rate plus 50 basis points) over (ii) the aggregate
unpaid principal amount of the Security to be redeemed plus any accrued but
unpaid interest thereon. The Applicable Premium
shall be computed as of the third Business Day prior to the applicable
redemption date, and certified, by an Investment Banker.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on behalf of
such Board.
"Business Day" means a day which is neither a legal holiday
nor a day on which banking institutions (including, without limitation, the
Federal Reserve System) are authorized or required by law or regulation to
close in The City of New York or the city of Minneapolis, Minnesota.
"Capital Stock" means, with respect to any Person, any and
all outstanding shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of, or interests in
(however designated), the equity of such Person including, without limitation,
all Common Stock and Preferred Stock and partnership and joint venture
interests of such Person.
"Cedel" has the meaning set forth in Section 2.4(b).
"Change of Control" means the occurrence of one or more of
the following events: (i) NSP (or its successors) shall cease to own a
majority of the outstanding Voting Stock of the Issuer, (ii) at any time
following the occurrence of the event described in clause (i), a Person or
group (as that term is used in Section 13(d)(3) of the Exchange Act) of
Persons (other than NSP) shall have become the beneficial owner, directly or
indirectly, or shall have acquired the absolute power to direct the vote, of
more than 35% of the outstanding Voting Stock of the Issuer or (iii) during
any twelve-month period, individuals who at the beginning of such period
constitute the Board of Directors (together with any new directors whose
election or nomination was approved by a majority of the directors then in
office who were either directors at the beginning of such period or who were
previously so approved) shall cease for any reason to constitute a majority of
the Board of Directors. Notwithstanding the foregoing, a Change of Control
shall be deemed not to have occurred if one or more of the above events occurs
or circumstances exist and, after giving effect thereto, the Securities are
rated Investment Grade. For purposes of clause (i), NSP's "successors" shall
be deemed to include the "Company," as that term is defined in the Amended and
Restated Agreement and Plan of Merger dated as of April 28, 1995, as amended
and restated as of July 26, 1995, between NSP and Wisconsin Energy
Corporation, a Wisconsin corporation, if the merger contemplated by such
agreement is consummated substantially in accordance with the terms specified
therein.
"Change of Control Offer" has the meaning set forth in
Section 3.10(b) hereof.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body (if any) performing such duties at such time.
"Common Stock" means, with respect to any Person, Capital
Stock of such Person that does not rank prior, as to the payment of dividends
or as to the distribution of assets upon
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any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of any other class of Capital Stock of such Person.
"Consolidated Current Assets" and "Consolidated Current
Liabilities" mean such assets and liabilities of the Issuer on a consolidated
basis as shall be determined in accordance with GAAP to constitute current
assets and current liabilities, respectively, provided that inventory shall be
valued at the lower of cost (using the average life method) or market.
"Consolidated Net Income" means, for any period, the net
income of the Issuer determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Tangible Assets" means, as of the date of
determination thereof, Consolidated Total Assets as of such date less the sum
of (i) Consolidated Current Liabilities and (ii) Intangible Assets.
"Consolidated Tangible Net Worth" means, as of the date of
determination thereof, shareholders' equity of the Issuer determined on a
consolidated basis in accordance with GAAP, less Intangible Assets.
"Consolidated Total Assets" means, as of the date of any
determination thereof, the total amount of all assets of the Issuer determined
on a consolidated basis in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the date as
of which this Indenture is dated, located at Corporate Trust, Norwest Center,
Sixth and Marquette, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"Euroclear" has the meaning set forth in Section 2.4(b).
"Event of Default" means any event or condition specified as
such in Section 4.1 hereof that shall have continued for the period of time,
if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
U.S. applied on a basis consistent with the principles, methods, procedures
and practices employed in the preparation of the Issuer's audited financial
statements, including, without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession.
"Global Security" has the meaning set forth in Section 2.4(c).
"Holder," "Holder of Securities," "Securityholder" and other
similar terms mean the registered holder of any Security.
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"IAI Global Security" has the meaning set forth in Section
2.4(b).
"Indebtedness" has the meaning set forth in Section 3.8.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Initial Purchasers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
"Intangible Assets" means, as of the date of determination
thereof, all assets of the Issuer properly classified as intangible assets
determined on a consolidated basis in accordance with GAAP.
"Interest Payment Date" means, with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Investment Banker" means an independent investment banking
institution of national standing selected by the Issuer.
"Investment Grade" means, with respect to the Securities, a
rating of Baa3 or higher by ▇▇▇▇▇'▇ Investors Service, Inc. and a rating of
BBB- or higher by Standard and Poor's Ratings Group (or, if either or both of
the foregoing rating agencies ceases to rate the Securities for reasons beyond
the control of the Issuer, equivalent ratings by one or two (as the case may
be) other nationally recognized statistical rating organizations (as such term
is defined in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act); provided that
if either of the foregoing rating agencies shall change its ratings
designations while the Securities are Outstanding, "Investment Grade" shall
mean the lowest ratings designation signifying "investment grade" issued by
such agencies (or higher).
"Issuer" means NRG Energy, Inc., a Delaware corporation,
and, subject to Article 8 hereof, its successors and assigns.
"Legend" has the meaning set forth in Section 2.6(d).
"Minimum Consolidated Tangible Net Worth" means an amount,
as of the date of any determination thereof, equal to the sum of $175 million
plus 25% of Consolidated Net Income for the period from and including April 1,
1996 to such determination date, but which amount shall in no event be less
than $175 million.
"NSP" means Northern States Power Company, a Minnesota
corporation.
"Officers' Certificate" means a certificate signed on behalf
of the Issuer by the Chairman of the Board of Directors or the President or
any Vice President and by the Chief Financial Officer or the Secretary or any
Assistant Secretary or the Treasurer or any Assistant Treasurer of the Issuer
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 10.5 hereof, if and to the extent required
thereby.
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"Opinion of Counsel" means an opinion in writing signed by
legal counsel satisfactory to the Trustee, who may be an employee of or
counsel to the Issuer. Each such opinion shall include the statements provided
for in Section 10.5 hereof, if and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) in exchange for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or
substitution.
"Outstanding", when used with reference to Securities,
shall, subject to the provisions of Section 6.4 hereof, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except:
1. Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation, or which shall have been
paid pursuant to Section 2.7 hereof (other than any such Securities
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands the Securities are valid obligations of the
Issuer); and
2. Securities, or portions thereof, for the payment or
redemption of which moneys or direct obligations of the United States
of America backed by its full faith and credit in the necessary
amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer (if the Issuer
shall act as its own paying agent), provided that if such Securities
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been herein provided, or provision satisfactory
to the Trustee shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice.
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of preferred or preference Capital
Stock of such Person that is outstanding or issued on or after the date of
this Indenture.
"Purchase Agreement" means the Purchase Agreement dated
January 29, 1996 between the Issuer and the Initial Purchasers.
"Regulation S" has the meaning set forth in Section 2.4(b).
"Repurchase Date" has the meaning set forth in Section
3.10(b).
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"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Restricted Regulation S Global Security" has the meaning
set forth in Section 2.4(b). "Rule 144A" has the meaning set forth in Section
2.4(b).
"Rule 144A Global Security" has the meaning set forth in
Section 2.4(b).
"Rule 144A Information" has the meaning specified in Section
3.7.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning set forth in the
recitals above.
"Securities Register" and "Security Registrar" have the
respective meanings specified in Section 2.6 hereof.
"Stated Maturity" means, with respect to any debt security
or any installment of interest thereon, the date specified in such debt
security as the fixed date on which any principal of such debt security or any
such installment of interest is due and payable.
"Treasury Rate" means, with respect to any Security to be
redeemed, a per annum rate (expressed as a semiannual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined and certified by an Investment Banker to be the
per annum rate equal to the semiannual yield to maturity of United States
Treasury securities maturing on the Average Life Date (as defined below) of
such Security, as determined by interpolation between the most recent weekly
average yields to maturity for two series of Treasury securities, (A) one
maturing as close as possible to, but earlier than, the Average Life Date of
such Security and (B) the other maturing as close as possible to, but later
than, the Average Life Date of such Security, in each case as published in the
most recent H.15(519) (or, if a weekly average yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Security
is reported in the most recent H.15(519), as published in H.15(519)).
"H.15(519)" means "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication, published by the Board of Governors of the Federal
Reserve System. The "most recent H.15(519)" means the latest H.15(519) that is
published prior to the close of business on the third Business Day prior to
the applicable redemption date. The "Average Life Date" for any Security to be
redeemed shall be the date that follows the redemption date by a period equal
to the Remaining Weighted Average Life of such Security. The "Remaining
Weighted Average Life" of such Security with respect to the redemption of such
Security is the number of days equal to the quotient obtained by dividing (A)
the sum of the products obtained by multiplying (1) the amount of each
remaining principal payment on such Security by (2) the number of days from
and including the redemption date, to but excluding the scheduled payment date
of such principal payment by (B) the unpaid principal amount of such Security.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
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"Trustee" means the entity identified as "Trustee" in the
first paragraph hereof until the appointment of a successor trustee pursuant
to Article 5, after which "Trustee" shall mean such successor trustee.
"Unrestricted Regulation S Global Security" has the meaning
set forth in Section 2.4(b).
"U.S. Depositary" has the meaning set forth in Section 2.4(b).
"U.S. Government Obligations" means securities that are (i)
direct and unconditional 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 payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank or trust company subject to federal or state supervision or examination
with a combined capital and surplus of at least $100,000,000, as custodian
with respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation 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
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors (or persons fulfilling similar responsibilities) of such
Person.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 Authentication and Delivery of Securities. Upon
the execution and delivery of this Indenture, or from time to time thereafter,
Securities in an aggregate principal amount not in excess of $125,000,000
(except as otherwise provided in Section 2.7 hereof) may be executed by the
Issuer and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Securities to or upon the written
order of the Issuer, signed by both (a) its Chairman of the Board Directors,
or any Vice Chairman of the Board of Directors, or its President or any Vice
President and (b) by its Chief Financial Officer, or its Secretary or any
Assistant Secretary, or its Treasurer or any Assistant Treasurer without any
further action by the Issuer. The Securities shall be direct, unconditional
obligations of the Issuer and shall rank pari passu without preference among
themselves and equally in priority of payment with all other present and
future unsubordinated, unsecured indebtedness of the Issuer.
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SECTION 2.2 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) its Chairman of the Board of
Directors or any Vice Chairman of the Board of Directors or its President or
any Vice President and (b) by its Chief Financial Officer or its Secretary or
any Assistant Secretary or its Treasurer or any Assistant Treasurer, under its
corporate seal which may, but need not, be attested. Such signatures may be
the manual or facsimile signatures of the present or any future such officers.
The seal of the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of
the seal or any such signature shall not affect the validity or enforceability
of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such Persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such Person was not such
officer.
SECTION 2.3 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form recited in the form of Security attached as Exhibit A hereto,
executed by the Trustee by manual signature of one of its authorized
signatories, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.
SECTION 2.4 Form, Denomination and Date of Securities;
Payments of Interest. (a) The Securities and the Trustee's certificate of
authentication shall be substantially in the form set forth in the form of
Security attached as Exhibit A hereto. The Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as the officers of the Issuer executing the same may determine with the
approval of the Trustee.
Any of the Securities may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Securities are admitted to trading, or to
conform to general usage.
(b) Securities offered and sold in reliance on Regulation S
under the Securities Act ("Regulation S") as provided in the Purchase
Agreement shall be issued in the form of a permanent Global Security (as
defined herein) in definitive, fully registered form without interest coupons
substantially in the form of Security attached as Exhibit A hereto with such
legends as may be applicable thereto in accordance with such form, which shall
be deposited on behalf of the purchasers of the Securities represented thereby
with the Trustee at the Corporate Trust Office, as custodian for The
Depository Trust Company (hereinafter, the "U.S. Depositary") and
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registered in the name of a nominee of the U.S. Depositary, duly executed by
the Issuer and authenticated by the Trustee as hereinafter provided, for
credit to their respective accounts (or to such other accounts as they may
direct) at ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear") or Cedel, S.A. ("Cedel"). Until
the termination of the restricted period (as defined in Regulation S) with
respect to the offer and sale of the Securities, interests in such Global
Security may only be held by the Agent Members (as defined herein) for
Euroclear and Cedel. Until such time as the restricted period shall have
terminated, such Global Security shall be referred to herein as the
"Restricted Regulation S Global Security." After such time as the restricted
period shall have terminated, such Global Security shall be referred to herein
as the "Unrestricted Regulation S Global Security." The aggregate principal
amount of the Restricted Regulation S Global Security and the Unrestricted
Regulation S Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the U.S.
Depositary, as hereinafter provided. The Issuer shall notify the Trustee of
the termination of the restricted period by furnishing to the Trustee a
certificate substantially in the form of Exhibit B hereto.
Securities offered and sold in reliance on Rule 144A under
the Securities Act ("Rule 144A") as provided in the Purchase Agreement shall
be issued in the form of a permanent Global Security (the "Rule 144A Global
Security") in definitive fully registered form without interest coupons
substantially in the form of Security attached as Exhibit A hereto with such
legends as may be applicable thereto in accordance with the form of such
Security deposited with the Trustee, at the Corporate Trust Office, as
custodian for the U.S. Depositary, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Rule 144A Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the U.S. Depositary, and the U.S. Depositary or its nominee, as the case may
be, as hereinafter provided.
Securities offered and sold to institutions that are
"accredited investors" within the meaning of Rule 501(a)(1), (2), (3) or (7)
of the Securities Act shall be issued in the form of a permanent Global
Security (the "IAI Global Security") in definitive fully registered form
without interest coupons substantially in the form of Security attached as
Exhibit A hereto with such legends as may be applicable thereto in accordance
with the form of such Security deposited with the Trustee, at the Corporate
Trust Office, as custodian for the U.S. Depositary, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the IAI Global Security may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian
for the U.S. Depositary, and the U.S. Depositary or its nominee, as the case
may be, as hereinafter provided.
(c) (i) This Section 2.4(c)(i) shall apply only to
Securities in global form ("Global Securities") deposited with the U.S.
Depositary.
The Issuer shall execute and the Trustee shall, in
accordance with this Section 2.4(c)(i), authenticate and deliver initially
Global Securities that (a) shall be registered in the name of the U.S.
Depositary for such Global Securities or the nominee of such U.S. Depositary,
(b) shall be deposited on behalf of Agent Members (as defined herein) with the
Trustee as custodian for the U.S. Depositary and (c) shall bear legends
substantially to the following effect:
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"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME AND ADDRESS OF U.S.
DEPOSITARY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION HEREOF IS
REGISTERED IN THE NAME OF [INSERT NAME OF U.S. NOMINEE OF
DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF U.S.
DEPOSITARY], OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF U.S.
DEPOSITARY] (AND ANY PAYMENT HEREON IS MADE TO [INSERT NAME
OF NOMINEE OF U.S. DEPOSITARY]), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
OTHER THAN [INSERT NAME OF U.S. DEPOSITARY OR A NOMINEE
THEREOF] IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [INSERT NAME OF NOMINEE OF U.S. DEPOSITARY], HAS AN
INTEREST HEREIN".
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [INSERT
NAME OF U.S. DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTION 2.6 OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF".
Members of, or participants in, a U.S. Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the U.S. Depositary or under any Global
Security, and the U.S. Depositary may be treated by the Issuer, the Trustee,
and any agent of the Issuer or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, the Trustee or any agent of the
Issuer or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the U.S. Depositary or impair, as between
the U.S. Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a holder of any security.
(c) (ii) This Section 2.4(c)(ii) shall apply only to the
Global Security deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee as custodian for the U.S. Depositary for
credit to their respective accounts (or to such other accounts as they may
direct) at Euroclear or Cedel insofar as interests in the Global Security are
held by the Agent Members for Euroclear or Cedel.
The provisions of the "Operating Procedures of the Euroclear
System" and the "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel,
respectively, shall be applicable to such Global Security insofar as interests
therein are held by the Agent Members for Euroclear and Cedel. Account holders
or participants in Euroclear and Cedel shall have no rights under this
Indenture with
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respect to the Global Security, and the nominee of the U.S. Depositary may be
treated by the Issuer and the Trustee and any agent of the Issuer or the
Trustee as the owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the U.S.
Depositary or impair, as between the U.S. Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
holder of any security.
(d) Each Security shall be dated the date of its
authentication and shall bear interest from the applicable date, and shall be
payable on the dates, specified on the face of the form of Security attached
as Exhibit A hereto.
(e) The Person in whose name any Security is registered at
the close of business on the record date specified in the Securities with
respect to any Interest Payment Date shall be entitled to receive the
interest, if any, payable on such Interest Payment Date notwithstanding any
transfer or exchange of such Security subsequent to the record date and prior
to such Interest Payment Date, except if and to the extent the Issuer shall
default in the payment of the interest due on such Interest Payment Date, in
which case such defaulted interest shall be paid to the Persons in whose names
Outstanding Securities are registered at the close of business on a subsequent
special record date, to be established (together with the related payment
date) by the Issuer with the consent of the Trustee. Such special record date
shall not be more than 15 nor less than 10 Business Days prior to the payment
date. Not more than 15 days prior to the special record date, the Issuer (or
the Trustee, in the name of and at the expense of the Issuer) shall mail to
Holders a notice that states the special record date, the related payment date
and the amount of interest to be paid. Notice of the proposed payment of such
defaulted interest and the special record date therefor having been mailed as
aforsaid, such defaulted interest shall be paid to the Persons in whose names
the Securities are registered on such special record date.
(f) The Securities shall be issuable in the denominations
specified in the form of Security attached as Exhibit A hereto.
SECTION 2.5 Global Securities. (a) Portions of a Global
Security deposited with the U.S. Depositary pursuant to Section 2.4 shall be
transferred in certificated form to the beneficial owners thereof only if such
transfer complies with Section 2.6 of this Indenture and (i) the U.S.
Depositary notifies the Issuer that it is unwilling or unable to continue as
U.S. Depositary for such Global Security or if at any time such U.S.
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Issuer within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing with
respect to the Securities and payment of principal thereof and interest
thereon has been accelerated.
(b) Portions of any Global Security that are transferable to
the beneficial owners thereof pursuant to this Section 2.5 shall be
surrendered by the U.S. Depositary to the Trustee at its New York office for
registration of transfer, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such registration
of transfer of each portion of such Global Security, an equal aggregate
principal amount of Securities of authorized denominations. Any portion of a
Global Security whose registration is transferred pursuant to
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this Section 2.5 shall be executed, authenticated and delivered only in the
denominations specified in the form of Security attached as Exhibit A hereto
and registered in such names as the U.S. Depositary shall direct. Any Security
delivered in exchange for a portion of the Rule 144A Global Security shall
bear the Legend regarding transfer restrictions applicable to the Rule 144A
Global Security set forth on the form of Security attached as Exhibit A
hereto. Any Security delivered in exchange for a portion of the IAI Global
Security shall bear the Legend regarding transfer restrictions set forth on
the form of Security attached as Exhibit A hereto. Any Security delivered in
exchange for a portion of the Restricted or Unrestricted Regulation S Global
Security shall bear the Legend regarding transfer restrictions applicable to
the Restricted or Unrestricted Registration S Global Security, as the case may
be, set forth on the form of Security attached as Exhibit A hereto.
(c) Subject to the provisions of Section 2.4(c) above, the
registered Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in paragraph (a) of this Section 2.5, the Issuer shall promptly make
available to the Trustee a reasonable supply of certificated Securities in
definitive fully registered form without interest coupons.
(e) The Global Security issued and authenticated pursuant to
the first paragraph of Section 2.4(b) (both before and after the expiration of
the restricted period), the Rule 144A Global Security and the IAI Global
Security shall each be assigned separate securities identification, or
"CUSIP," numbers.
SECTION 2.6 Registration, Registration of Transfer and
Exchange. (a) The Issuer shall keep at each office or agency to be maintained
for the purpose as provided in Section 3.2 hereof a register or registers
(collectively referred to as the "Securities Register") in which, subject to
such reasonable regulations as it may prescribe, it will register or cause to
be registered, and will register or cause to be registered the transfer of,
Securities as in this Article provided. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers
of Securities as herein provided. If at any time the Trustee shall not be
serving as Security Registrar, at all reasonable times such Securities
Register shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Security at each such office or agency, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities in authorized denominations for a
like aggregate principal amount.
Any Security or Securities may be exchanged for a Security
or Securities in other authorized denominations, in an equal aggregate
principal amount. Securities to be exchanged shall be surrendered at each
office or agency to be maintained by the Issuer for the purpose as provided in
Section 3.2 hereof, and the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
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All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the Holder or its attorney duly authorized in writing.
The Issuer or Trustee shall not be required to exchange or
register a transfer of (a) any Securities for a period of 15 days next
preceding the first mailing of notice of redemption of Securities to be
redeemed or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that
such Security is to be redeemed in part, the portion thereof not so to be
redeemed.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Security remains outstanding and is held by or on behalf of
the U.S. Depositary, transfers of a Global Security, in whole or in part,
shall only be made (x) in the case of transfers of portions of a Global
Security to beneficial owners thereof in certificated form, in accordance with
Section 2.5, and (y) in all other cases, in accordance with this Section
2.6(b) (and subject, in each case, to the provisions of any Legend (as defined
herein) imprinted on such Global Security).
(i) Transfers of Global Securities as such. Subject to
clauses (ii) through (vi) of this Section 2.6(b), transfers of a
Global Security shall be limited to transfers of such Global Security
in whole, and not in part, to nominees of the U.S. Depositary or to a
successor of the U.S. Depositary or such successor's nominee.
(ii) Rule 144A Global Security or IAI Global Security to
Restricted Regulation S Global Security. If a holder of a beneficial
interest in the Rule 144A Global Security or the IAI Global Security
deposited with the U.S. Depositary wishes at any time to exchange or
transfer its interest in such Global Security to a Person who wishes
to take delivery thereof in the form of an interest in the Restricted
Regulation S Global Security, such holder may, subject to the rules
and procedures of the U.S. Depositary, exchange or transfer or cause
the exchange or transfer of such interest for an equivalent
beneficial interest in the Restricted Regulation S Global Security in
accordance with, and subject to, this clause (ii). Upon receipt by
the Trustee at the Corporate Trust Office of (1) instructions given
in accordance with the U.S. Depositary's procedures from an Agent
Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Restricted Regulation S Global Security in
an amount equal to the beneficial interest in the Rule 144A Global
Security or the IAI Global Security, as the case may be, to be
exchanged or transferred, (2) a written order given in accordance
with the U.S. Depositary's procedures containing information
regarding the Euroclear or Cedel account to be credited with such
increase and the name of such account, and (3) a certificate in the
form of Exhibit C attached hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Securities and pursuant to and in accordance
-13-
with Regulation S, the Trustee shall instruct the U.S. Depositary to
reduce the Rule 144A Global Security or the IAI Global Security, as
the case may be, by the aggregate principal amount of the beneficial
interest in the Rule 144A Global Security or the IAI Global Security,
as the case may be, to be so exchanged or transferred and the Trustee
shall instruct the U.S. Depositary, concurrently with such reduction,
to increase the principal amount of the Restricted Regulation S
Global Security by the aggregate principal amount of the beneficial
interest in the Rule 144A Global Security or the IAI Global Security,
as the case may be, to be so exchanged or transferred, and to credit
or cause to be credited to the account of the person specified in
such instructions (who shall be the Agent Member for Euroclear or
Cedel, or both, as the case may be) a beneficial interest in the
Restricted Regulation S Global Security equal to the reduction in the
principal amount of the Rule 144A Global Security or the IAI Global
Security, as the case may be.
(iii) Rule 144A Global Security or IAI Global Security to
Unrestricted Regulation S Global Security. If a holder of a
beneficial interest in the Rule 144A Global Security or the IAI
Global Security, as the case may be, deposited with the U.S.
Depositary wishes at any time to exchange its interest in such Global
Security for an interest in the Unrestricted Regulation S Global
Security, or to transfer its interest in such Global Security to a
Person who wishes to take delivery thereof in the form of an interest
in the Unrestricted Regulation S Global Security, such holder may,
subject to the rules and procedures of the U.S. Depositary, exchange
or cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in the Unrestricted
Regulation S Global Security in accordance with, and subject to, this
clause (iii). Upon receipt by the Trustee at the Corporate Trust
Office of (1) instructions given in accordance with the U.S.
Depositary's procedures from an Agent Member directing the Trustee to
credit or cause to be credited a beneficial interest in the
Unrestricted Regulation S Global Security in an amount equal to the
beneficial interest in the Rule 144A Global Security or the IAI
Global Security, as the case may be, to be exchanged or transferred,
(2) a written order given in accordance with the U.S. Depositary's
procedures containing information regarding the participant account
of the U.S. Depositary and, in the case of a transfer pursuant to and
in accordance with Regulation S, the Euroclear or Cedel account to be
credited with such increase and (3) a certificate in the form of
Exhibit D attached hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such interest has
been made in compliance with the transfer restrictions applicable to
the Securities and (A) in the case of an exchange, that either (x)
the Security being exchanged is not a "restricted security" as
defined in Rule 144 under the Securities Act, or (y) the exchange is
being made to facilitate a contemporaneous transfer that complies
with this clause (iii), (B) in the case of a transfer pursuant to
Regulation S, that the Security is being transferred pursuant to and
in accordance with Regulation S, (C) in the case of a transfer
pursuant to Rule 144, that the Security is being transferred pursuant
to and in accordance with Rule 144 or (D) in the case of a transfer
pursuant to another exemption from the Securities Act (including
without limitation Rule 144A), specifying the basis for such
exemption, the Trustee shall instruct the U.S. Depositary to reduce
the Rule 144A Global Security or the IAI Global Security, as the case
may be, by the aggregate principal amount of the beneficial interest
in the Rule 144A Global Security or the IAI Global Security, as the
case may be, to be
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so exchanged or transferred and the Trustee shall instruct the U.S.
Depositary, concurrently with such reduction, to increase the
principal amount of the Unrestricted Regulation S Global Security by
the aggregate principal amount of the beneficial interest in the Rule
144A Global Security or the IAI Global Security, as the case may be,
to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions
a beneficial interest in the Unrestricted Regulation S Global
Security equal to the reduction in the principal amount of the Rule
144A Global Security or the IAI Global Security, as the case may be.
(iv) Restricted Regulation S Global Security, Unrestricted
Regulation S Global Security or IAI Global Security to Rule 144A
Global Security. If a holder of a beneficial interest in the
Restricted Regulation S Global Security, the Unrestricted Regulation
S Global Security or the IAI Global Security deposited with the U.S.
Depositary wishes at any time to exchange or transfer its interest in
such Restricted Regulation S Global Security, Unrestricted Regulation
S Global Security or IAI Global Security to a Person who wishes to
take delivery thereof in the form of an interest in the Rule 144A
Global Security such holder may, subject to the rules and procedures
of Euroclear or Cedel and the U.S. Depositary, as the case may be,
exchange or transfer or cause the exchange or transfer of such
interest for an equivalent beneficial interest in the Rule 144A
Global Security, in accordance with, and subject to, this clause
(iv). Upon receipt by the Trustee, at the Corporate Trust Office of
(1) instructions from Euroclear or Cedel or the U.S. Depositary, as
the case may be, directing the Trustee to credit or cause to be
credited a beneficial interest in the Rule 144A Global Security equal
to the beneficial interest in the Restricted Regulation S Global
Security, the Unrestricted Regulation S Global Security or the IAI
Global Security to be exchanged or transferred, such instructions to
contain information regarding the Agent Member's account with the
U.S. Depositary to be credited with such increase, and, with respect
to an exchange or transfer of an interest in the Unrestricted
Regulation S Global Security, information regarding the Agent
Member's account with the U.S. Depositary to be debited with such
decrease, and (2) a certificate in the form of Exhibit E attached
hereto given by the holder of such beneficial interest and stating
that the person exchanging or transferring such interest in the
Restricted Regulation S Global Security, the Unrestricted Regulation
S Global Security or the IAI Global Security, as the case may be,
reasonably believes that the person acquiring such interest in the
Rule 144A Global Security is a qualified institutional buyer (as
defined in Rule 144A) and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A, Euroclear or Cedel
or the Trustee, as the case may be, shall instruct the U.S.
Depositary to reduce the Restricted Regulation S Global Security, the
Unrestricted Regulation S Global Security or the IAI Global Security,
as the case may be, by the aggregate principal amount of the
beneficial interest in the Restricted Regulation S Global Security,
the Unrestricted Regulation S Global Security or the IAI Global
Security to be exchanged or transferred, and the Trustee shall
instruct the U.S. Depositary, concurrently with such reduction to
increase the principal amount of the Rule 144A Global Security by the
aggregate principal amount of the beneficial interest in the
Restricted Regulation S Global Security, the Unrestricted Regulation
S Global Security or the IAI Global Security, as the case may be, to
be so exchanged or transferred, and to credit or cause to be credited
to the account of the person specified in such instructions a
beneficial interest in the Rule 144A Global Security equal to the
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reduction in the principal amount of the Restricted Regulation S
Global Security, the Unrestricted Regulation S Global Security or the
IAI Global Security, as the case may be.
(v) Rule 144A Global Security, Restricted Regulation S
Global Security or Unrestricted Regulation S Global Security to IAI
Global Security. If a holder of a beneficial interest in the Rule
144A Global Security, the Restricted Regulation S Global Security or
the Unrestricted Regulation S Global Security deposited with the U.S.
Depositary wishes at any time to exchange or transfer its interest in
such Global Security to a Person who wishes to take delivery thereof
in the form of an interest in the IAI Global Security such holder
may, subject to the rules and procedures of Euroclear or Cedel and
the U.S. Depositary, as the case may be, exchange or transfer or
cause the exchange or transfer of such interest for an equivalent
beneficial interest in the IAI Global Security, in accordance with,
and subject to, this clause (v). Upon receipt by the Trustee, at the
Corporate Trust Office of (1) instructions from Euroclear or Cedel or
the U.S. Depositary, as the case may be, directing the Trustee to
credit or cause to be credited a beneficial interest in the IAI
Global Security equal to the beneficial interest in the Restricted
Regulation S Global Security, the Unrestricted Regulation S Global
Security or the Rule 144A Global Security to be exchanged or
transferred, such instructions to contain information regarding the
Agent Member's account with the U.S. Depositary to be credited with
such increase, and, with respect to an exchange or transfer of an
interest in the Unrestricted Regulation S Global Security,
information regarding the Agent Member's account with the U.S.
Depositary to be debited with such decrease, and (2) a certificate in
the form of Exhibit F attached hereto given by the holder of such
beneficial interest and stating that the person exchanging or
transferring such interest reasonably believes that the person
acquiring such interest in the IAI Global Security is an institution
that is an "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and is obtaining such beneficial
interest in a transaction exempt from the Securities Act, Euroclear
or Cedel or the Trustee, as the case may be, shall instruct the U.S.
Depositary to reduce the Restricted Regulation S Global Security, the
Unrestricted Regulation S Global Security or the Rule 144A Global
Security, as the case may be, by the aggregate principal amount of
the beneficial interest in such Global Securities to be exchanged or
transferred, and the Trustee shall instruct the U.S. Depositary,
concurrently with such reduction to increase the principal amount of
the IAI Global Security by the aggregate principal amount of the
beneficial interest in the Restricted Regulation S Global Security,
the Unrestricted Regulation S Global Security or the Rule 144A Global
Security, as the case may be, to be so exchanged or transferred, and
to credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the IAI
Global Security equal to the reduction in the principal amount of the
Restricted Regulation S Global Security, the Unrestricted Regulation
S Global Security or the Rule 144A Global Security, as the case may
be.
(vi) Other Exchanges. In the event that a Global Security is
exchanged for Securities in definitive registered form without
interest coupons pursuant to Section 2.5 hereof, such Securities may
be exchanged or transferred for one another only in accordance with
such procedures as are substantially consistent with the provisions
of clauses (ii) through (v) above (including, without limitation, the
certification requirements
-16-
intended to insure that such exchanges or transfers comply with Rule
144A, Rule 144 or Regulation S under and generally with the
Securities Act, as the case may be) and as may be from time to time
adopted by the Issuer and the Trustee.
(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the Security Register. No service charge
shall be made for any registration of transfer or exchange of the Securities,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith and any other
amounts required to be paid by the provisions of the Securities.
(d) If Securities are issued upon the registration of
transfer, exchange or replacement of Securities not bearing the legends
required by the form of Security attached as Exhibit A hereto (collectively,
the "Legend"), the Securities so issued shall bear the Legend. If Securities
are issued upon the registration of transfer, exchange or replacement of
Securities bearing the Legend, or if a request is made to remove the Legend on
a Security, the Securities so issued shall bear the Legend, or the Legend
shall not be removed, as the case may be, unless there is delivered to the
Issuer and the Trustee such satisfactory evidence, which may include an
opinion of counsel of recognized standing licensed to practice law in the
State of New York and experienced in matters involving the Securities Act, as
may be reasonably required by the Issuer that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or that such Securities are not
"restricted securities" within the meaning of Rule 144 under the Securities
Act. Upon provision of such satisfactory evidence, the Trustee, at the
direction of the Issuer, shall authenticate and deliver a Security that does
not bear the Legend. If a legend is removed from the face of a Security and
the Security is subsequently held by an affiliate of the Issuer, the Legend
shall be reinstated.
SECTION 2.7 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so apparently destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and
of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security which has matured or is about to mature, or has been called for
redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security),
-17-
if the applicant for such payment shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as any of them may require to save each of them harmless from all risks,
however remote, and, in every case of apparent destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security issued pursuant to the provisions
of this Section by virtue of the fact that any Security is apparently
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the apparently destroyed, lost or
stolen Security shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any
and all other Securities duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, defaced, or apparently destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.8 Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of transfer
or exchange, if surrendered to the Issuer or any agent of the Issuer or the
Trustee, shall be delivered to the Trustee for cancellation or, if surrendered
to the Trustee, shall be canceled by it provided all conditions regarding such
cancellation have been met; and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall cancel and dispose of all Securities surrendered for
registration of transfer, exchange, payment or cancellation in accordance with
the Trustee's policy of disposal unless the Issuer instructs the Trustee in
writing to deliver the Securities to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.9 Temporary Securities. Pending the preparation of
definitive Securities, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities shall be issuable as registered Securities
without coupons, of any authorized denomination, and substantially in the form
of the definitive Securities but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities and thereupon temporary Securities may be
surrendered in exchange therefor without charge at each office or agency to be
maintained by the Issuer for the purpose pursuant to Section 3.2 hereof, and
the Trustee shall authenticate and deliver in exchange for such temporary
Securities a like aggregate principal amount of definitive Securities of
authorized
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denominations. Until so exchanged the temporary Securities shall be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 2.10 Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE III
COVENANTS OF
THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal and Change of Control purchase price of, and premium, if any,
and interest on, each of the Securities at the place or places, at the
respective times and in the manner provided in the Securities. Payment of
principal and the Change of Control purchase price of, and premium and
interest on the Securities shall be paid by mailing a check to or upon the
written order of the registered Holders of Securities entitled thereto at
their last address as it appears on the Securities Register or, upon written
application to the Trustee by a Holder of $1,000,000 or more in aggregate
principal amount of Securities, by wire transfer of immediately available
funds to an account maintained by such Holder with a bank or other financial
institution; provided, however, that (subject to the provisions of Section 2.7
hereof) payment of principal and the Change of Control Price of, and premium,
if any, on, any Security may be conditioned upon presentation for payment of
the certificate representing such Security.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain Outstanding, the Issuer shall maintain in the Borough of
Manhattan, The City of New York, the following: (a) an office or agency where
the Securities may be presented for payment, (b) an office or agency where the
Securities may be presented for registration of transfer and for exchange as
in this Indenture provided and (c) an office or agency where notices and
demands to or upon the Issuer in respect of the Securities or of this
Indenture may be served. The Issuer shall give to the Trustee written notice
of the location of any such office or agency and of any change of location
thereof. The Issuer hereby initially designates the Trustee's New York office
as such office or agency. In case the Issuer shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 5.9
hereof, a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.4 Paying Agents. The Trustee shall be the
principal paying agent for the Securities. Whenever the Issuer shall appoint a
paying agent other than the Trustee, it
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shall cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal or Change of Control purchase price
of, or premium or interest on, the Securities (whether such sums have
been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities
or of the Trustee,
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities) to make any
payment of the principal or Change of Control purchase price of, or
premium or interest on, the Securities when the same shall be due and
payable and
(c) pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance
of the failure referred to in clause (b) above.
The Issuer shall, prior to each due date of the principal or
Change of Control purchase price of, and premium, if any, or interest on the
Securities, deposit with the paying agent a sum sufficient to pay such
principal, Change of Control purchase price, premium or interest, and (unless
such paying agent is the Trustee) the Issuer shall promptly notify the Trustee
of any failure to take such action.
Anything in this Section 3.4 to the contrary
notwithstanding, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by any paying agent
hereunder, as required by this Section 3.4, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 3.4 is subject
to the provisions of Section 9.3 and Section 9.4 hereof.
SECTION 3.5 Certificate to Trustee. The Issuer shall furnish
to the Trustee on or before March 31 in each year (beginning with March 31,
1996) a brief certificate from the principal executive, financial or
accounting officer of this Issuer as to his or her knowledge of the Issuer's
compliance with all covenants under this Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice
provided under this Indenture).
SECTION 3.6 Securityholder's Lists. The Issuer shall furnish
or cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of the Securities
(a) semiannually not more than 15 days after each record date for the payment
of semi-annual interest on the Securities, as specified in the form of
Security attached as Exhibit A hereto, as of such record date and (b) at other
times as the
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Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer. (a) If the Issuer is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, then the Issuer shall file with the Trustee and provide Securityholders,
within 15 days after it files them with the Commission, copies of its annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) that the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of Exchange Act.
(b) As long as the Issuer is not subject to Section 13 or
15(d) of the Exchange Act, at any time, upon the request of a Holder or any
owner of a beneficial interest in a Security, the Issuer shall promptly
furnish or cause to be furnished "Rule 144A Information" (as defined herein)
to such Holder or beneficial owner or to a prospective purchaser of such
Security designated by such Holder or beneficial owner in order to permit
compliance by such Holder or beneficial owner with Rule 144A under the
Securities Act in connection with the resale of such Security by such Holder
or beneficial owner. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).
(c) In addition to the requirement to furnish Rule 144A
Information as provided in subsection (b), the Issuer shall furnish or cause
to be furnished to Holders and (upon the request thereof delivered to the
Issuer or the Trustee) to holders of an interest in any Global Security (i)
annual consolidated comparative financial statements of the Issuer prepared in
accordance with GAAP (together with notes thereto, a report thereon by an
independent accountant of established national reputation and a management's
discussion and analysis of financial condition and results of operations),
such statements to be so furnished as soon as reasonably available and in any
event within 120 days after the end of the fiscal year covered thereby and
(ii) unaudited condensed consolidated comparative balance sheets and
statements of income and cash flows of the Issuer for each of the first three
fiscal quarters of each fiscal year and the corresponding quarter and
year-to-date period of the prior year prepared on a basis consistent with the
annual financial statements furnished pursuant to clause (c)(i), such
statements to be so furnished within 60 days after the end of each such
quarter.
SECTION 3.8 Limitation on Liens. So long as any of the
Securities are Outstanding, the Issuer shall not pledge, mortgage or
hypothecate, or permit to exist, any mortgage, pledge or other lien upon any
property at any time directly owned by the Issuer to secure any indebtedness
for money borrowed that is incurred, issued, assumed or guaranteed by the
Issuer ("Indebtedness"), without making effective provisions whereby the
Securities shall be equally and ratably secured with any and all such
Indebtedness and with any other Indebtedness similarly entitled to be equally
and ratably secured; provided, however, that this restriction shall not apply
to or prevent the creation or existence of (i) liens existing at the Original
Issuance Date of the Securities, (ii) purchase money liens that do not exceed
the cost or value of the purchased property, (iii) other liens not to exceed
10% of Consolidated Net Tangible Assets, and (iv) liens granted in connection
with extending, renewing, replacing or refinancing, in whole or in part,
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the Indebtedness (including, without limitation, increasing the principal
amount of such Indebtedness) secured by liens described in the foregoing
clauses (i) through (iii).
In the event that the Issuer shall propose to pledge,
mortgage or hypothecate any property at any time directly owned by it to
secure any Indebtedness, other than as permitted by clauses (i) through (iv)
of the previous paragraph, the Issuer shall (prior thereto) give written
notice thereof to the Trustee, who shall give notice to the Holders, and the
Issuer shall, prior to or simultaneously with such pledge, mortgage or
hypothecation, effectively secure all the Securities equally and ratably with
such Indebtedness.
SECTION 3.9 Net Worth. So long as any of the Securities are
Outstanding, the Issuer shall not permit its Consolidated Tangible Net Worth
at any time to be less than the Minimum Consolidated Tangible Net Worth.
SECTION 3.10 Repurchase of Securities Upon a Change of
Control. (a) Upon a Change of Control, each Holder of the Securities shall
have the right to require that the Issuer repurchase such Holder's Securities
at a repurchase price in cash equal to 101% of the principal amount thereof
plus accrued interest, if any, to the date of repurchase, in accordance with
the terms set forth in subsection (b) below.
(b) Within 30 days following any Change of Control, the
Issuer shall mail a notice to each Holder (with a copy to the Trustee)
stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Issuer to repurchase such
Holder's Securities at a repurchase price in cash equal to 101% of
the principal amount thereof plus accrued interest, if any, to the
date of repurchase (the "Change of Control Offer");
(2) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization of the Issuer after
giving effect to such Change of Control);
(3) the repurchase date (which shall be a Business Day and
be not earlier than 30 days or later than 60 days from the date such
notice is mailed) (the "Repurchase Date");
(4) that any Security not tendered for purchase will
continue to accrue interest;
(5) that interest on any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue after
the repurchase of such Security on the Repurchase Date;
(6) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the paying
agent at the address specified in the notice prior to the close of
business on the Business Day prior to the Repurchase Date;
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(7) that Holders will be entitled to withdraw their election
if the paying agent receives, not later than the close of business on
the third Business Day (or such shorter periods as may be required by
applicable law) preceding the Repurchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Securities the Holder delivered for
purchase, and a statement that such Holder is withdrawing its
election to have such Securities purchased; and
(8) that Holders that elect to have their Securities
purchased only in part will be issued new Securities in a principal
amount equal to then unpurchased portion of the Securities
surrendered.
(c) Notwithstanding the foregoing, for so long as the
Securities are in the form of Global Securities, the Issuer shall deliver to
the U.S. Depositary within the time periods specified above, for retransmittal
to its Agent Members, a notice substantially to the effect specified in
clauses (1) through (5) and (7) above, which notice shall also specify the
required procedures (furnished by the U.S. Depositary) for holders of
interests in the Global Securities to tender and receive payment of the
purchase price for such interests (including the U.S. Depositary's "Repayment
Option Procedures," to the extent applicable), all in accordance with the U.S.
Depositary's rules, regulations and practices.
(d) On the Repurchase Date, the Issuer shall (i) accept for
payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Trustee money sufficient without
reinvestment to pay the purchase price of all Securities or portions thereof
so tendered and (iii) deliver or cause to be delivered to the Trustee
Securities so accepted together with an Officers' Certificate identifying the
Securities or portions thereof tendered to the Issuer. The Trustee shall
promptly mail to the Holders of the Securities so accepted payment in an
amount equal to the purchase price, and promptly authenticate and mail to such
Holders a new Security in a principal amount equal to any unpurchased portion
of the Security surrendered. The Issuer will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Repurchase
Date.
(e) The Issuer shall comply with Rule 14e-1 under the
Exchange Act and any other applicable laws and regulations in the event that a
Change of Control occurs and the Issuer is required to make a Change of
Control Offer.
ARTICLE IV
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. In case one or more of the following Events of
Default (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing,
that is to say:
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(a) default in the payment of all or any part of the
principal or Change of Control purchase price of, or premium, if any,
on, any of the Securities as and when the same shall become due and
payable either at maturity, upon any redemption or required
repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest
upon any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(c) an event of default, as defined in any instrument of the
Issuer under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness of the Issuer that has
resulted in the acceleration of such Indebtedness, or any default
occurring in payment of any such Indebtedness at final maturity (and
after the expiration of any applicable grace periods), other than
such Indebtedness (i) which is payable solely out of the property or
assets of a partnership, joint venture or similar entity of which the
Issuer is a participant, or which is secured by a lien on the
property or assets owned or held by such entity, without further
recourse to or liability of the Issuer, or (ii) the principal of, and
interest on, which, when added to the principal of and interest on
all other such Indebtedness (exclusive of Indebtedness under clause
(i) above), does not exceed $20,000,000; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities or in this Indenture and such failure
continues for a period of 30 days after the date on which written
notice specifying such failure, stating that such notice is a "Notice
of Default" hereunder and demanding that the Issuer remedy the same,
shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Securities at the time Outstanding; or
(e) one or more final judgments, decrees or orders of any
court, tribunal, arbitrator, administrative or other governmental
body or similar entity for the payment of money shall be rendered
against the Issuer or any of its properties in an aggregate amount in
excess of $20,000,000 (excluding the amount thereof covered by
insurance) and such judgment, decree or order shall remain unvacated,
undischarged and unstayed for more than 90 consecutive days, except
while being contested in good faith by appropriate proceedings; or
(f) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or a decree or order adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of or in
respect of the Issuer under any applicable federal or state law, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of its property or ordering the winding up or liquidation
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of its affairs, shall have been entered, and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive
days; or
(g) the Issuer shall commence a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or consent to the entry of a decree or order for relief in
an involuntary case or proceeding under any such law, or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Issuer, or the filing by the Issuer of a petition or
answer or consent seeking reorganization or relief under any such
applicable federal or state law, or the consent by the Issuer to the
filing of such petition or to the appointment of or the taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or of any
substantial part of its property, or the making by the Issuer of an
assignment for the benefit of creditors, or the taking of action by
the Issuer in furtherance of any such action;
then and in each and every such case (other than an Event of Default with
respect to the Issuer specified in Section 4.1(f) or 4.1(g) hereof), unless
the principal of all of the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities then Outstanding hereunder, by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal of all the Securities and the interest accrued
thereon to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable. This provision, however, is
subject to the condition that if, at any time after the principal of the
Securities shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities and the principal or Change of Control purchase price and
premium, if any, of any and all Securities that shall have become due
otherwise than by acceleration (with interest upon such principal and Change
of Control purchase price and premium, if any, and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the rate of interest specified in the Securities, to the date
of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other reasonable expenses
and liabilities incurred and all reasonable advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith, and if
any and all Events of Default under the Indenture, other than the non-payment
of the principal that shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein, then and in every such
case the Holders of a majority in aggregate principal amount of the Securities
then Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults (except, unless theretofore cured, a default in payment of
principal of, or Change of Control purchase price or premium, if any, or
interest on, the Securities) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
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If an Event of Default specified in Section 4.1(f) or 4.1(g)
hereof occurs with respect to the Issuer, the principal of and accrued
interest on the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholder.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal or Change of Control purchase
price of, or premium, if any, on, any of the Securities when the same shall
have become due and payable, whether upon maturity or upon any redemption or
by declaration of acceleration or otherwise, then upon demand of the Trustee,
the Issuer shall pay to the Trustee for the benefit of the Holders of the
Securities the whole amount that then shall have become due and payable on all
such Securities of principal, Change of Control purchase price, premium or
interest, as the case may be (with interest to the date of such payment upon
the overdue principal, Change of Control purchase price or premium and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the rate of interest specified in the
Securities); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any reasonable expenses and liabilities
incurred, and all reasonable advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal and Change of Control purchase price of and premium and interest
on the Securities to the registered Holders, whether or not the Securities be
overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section 4.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
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(a) to file and prove a claim or claims for the whole amount
of principal, Change of Control purchase price, premium and interest
owing and unpaid in respect of the Securities, and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
all reasonable expenses and liabilities incurred, and all reasonable
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence or bad faith) and of the Securityholders,
allowed in any judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts
as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other reasonable expenses and
liabilities incurred, and all reasonable advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholders any plan or reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof at
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any
Holders of the Securities parties to any such proceedings.
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SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities and stamping (or otherwise noting) thereon the payment, or
issuing Securities in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all reasonable
expenses and liabilities incurred, and all reasonable advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due under Section 5.6
hereof;
SECOND: In case the principal and the Change of Control
purchase price and premium, if any, of the Securities shall not have
become and be then due and payable, to the payment of interest in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest
at the rate of interest specified in the Securities, such payments to
be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal or the Change of Control
purchase price of the Securities shall have become and shall be then
due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities for principal, Change of Control
purchase price, premium, and interest, with interest upon the overdue
principal, Change of Control purchase price, premium, if any, and (to
the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate of interest specified in
the Securities; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities, then
to the payment of such principal, Change of Control purchase price,
premium and interest, without preference or priority of principal,
Change of Control purchase price or premium over interest, or of
interest over principal or Change of Control purchase price or
premium, or of any installment of interest over any other installment
of interest, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 4.3.
SECTION 4.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law
or in equity or in bankruptcy or otherwise, whether for the specific
enforcement
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of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 4.6 Limitations of Suits by Securityholders. No
Holder of any Security shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding shall have made written request upon the Trustee
to institute such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.8 hereof; it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or
more Holders of Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section 4.6 each and
every Securityholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
SECTION 4.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 2.7 hereof, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder of any
of the Securities to exercise as aforesaid any such right or power accruing
upon any Event of Default occurring and
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continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6 hereof, every power and remedy given by
this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 4.8 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee by this Indenture;
provided that such direction shall not be otherwise than in accordance with
law and the provisions of this Indenture; and provided further that (subject
to the provisions of Section 5.1 hereof) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forbearances specified in or pursuant
to such direction shall be unduly prejudicial to the interests of Holders of
the Securities not joining in the giving of said direction, it being
understood that (subject to Section 5.1 hereof) the Trustee shall have no duty
to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the
declaration of the maturity of the Securities as provided in Section 4.1
hereof, the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may on behalf of the Holders of all the
Securities waive any past default or Event of Default hereunder and its
consequences, except a default (a) in the payment of principal or Change of
Control purchase price of, premium, if any, or interest on any of the
Securities or (b) in respect of a covenant or provision hereof that cannot be
modified or amended without the consent of the Holder of each Security
affected. If a default shall occur hereunder by reason of the Issuer's failure
to comply with Section 3.9 hereof and the Issuer shall cease to be in breach
of such Section prior to the time that such default constitutes an Event of
Default, such default and its consequences shall be deemed waived by the
Holders without any further action required on the part of the Trustee or the
Holders. In the case of any such waiver, the Issuer, the Trustee and the
Holders of the Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but
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no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 4.10 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 4.6 hereof), the right of any Holder to receive, and to
institute suit to enforce, payment of the principal and Change of Control
purchase price of, and premium, if any, and interest on the Securities on or
after the respective due dates expressed in such Securities (including upon
redemption and acceleration of the maturity of the principal of and premium,
if any, and interest on the Securities), shall not be affected or impaired,
and shall be absolute and unconditional.
ARTICLE V
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of Default that
may have occurred, undertakes to perform only such duties as are specifically
set forth in this Indenture. In case an Event of Default has occurred (which
has not been cured or waived) the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
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(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a majority in
principal amount of the Securities at the time Outstanding relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
SECTION 5.2 Certain Rights of the Trustee. Subject to
Section 5.1 hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate (including, without limitation, any certificate
provided to the Trustee pursuant to Section 3.5 hereof), statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security,
or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount
of the Securities then Outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Issuer, or by
the Trustee or any predecessor Trustee and repaid by the Issuer upon
demand; and
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or
attorney.
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and receive, collect, hold
and retain collections from the Issuer with the same rights it would have if
it were not the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the
provisions of Section 9.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the
Trustee nor any agent of the Issuer or the Trustee shall be under any
liability for interest on any moneys received by it hereunder, except as the
Issuer and the Trustee otherwise may agree.
SECTION 5.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time as shall be agreed upon between the Issuer and the Trustee in
writing from time to time, and the Trustee shall be entitled
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to, reasonable compensation (which shall not be limited by any provision of
law relating to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ), except to the
extent any such expense, disbursement or advance may arise from the Trustee's
negligence or bad faith. The Issuer also covenants to indemnify the Trustee
and each predecessor Trustee for, and to hold it harmless against, any and all
loss, liability, damage, claims or expense arising out of or in connection
with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder and the performance of its duties
hereunder, including the costs and expenses of defending and investigating any
claim of liability in the premises, except to the extent any such loss,
liability or expense is due to its own negligence or bad faith. The
obligations of the Issuer under this Section 5.6 to compensate and indemnify
the Trustee and each predecessor Trustee and to pay or reimburse the Trustee
and each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture.
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Section 5.1 and Section 5.2 hereof, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or of a state thereof, having a
combined capital and surplus of at least $500,000,000, and which is authorized
under such laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a federal, state or District of Columbia supervising or examining
authority, then for the purposes of this Section 5.8, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor on the Securities or Person directly or indirectly controlling,
controlled by or under common control with such obligor shall serve as
Trustee.
SECTION 5.9 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee may at any time resign by giving written
notice of resignation to the Issuer and by mailing notice thereof by
first-class mail to Holders of Securities at their last addresses as they
shall appear on the Securities Register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the
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appointment of a successor trustee, or any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act, after written request
therefor by the Issuer or by any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months;
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 5.8 hereof and shall fail to resign
after written request therefor by the Issuer or by any such
Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy of which shall be delivered
to the successor trustee, or, any Securityholder who has been a bona fide
Holder of a Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities at the time Outstanding may at any time remove the Trustee
and appoint a successor trustee by delivering to the Trustee so removed, to
the successor trustee so appointed and to the Issuer the evidence provided for
in Section 6.1 hereof of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 5.9 shall become effective only upon acceptance of appointment by the
successor trustee as provided in Section 5.10 hereof.
SECTION 5.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 5.9 hereof shall
execute and deliver to the Issuer and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Issuer or of
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the successor trustee, upon payment of its charges then unpaid, the Trustee
ceasing to act shall, subject to Section 9.4 hereof, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee,
the Issuer shall execute appropriate instruments in writing for more fully and
certainly vesting in and confirming to such successor such rights and powers.
Any Trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to the provisions of Section 5.6 hereof.
Upon acceptance of appointment by a successor trustee as
provided in this Section 5.10, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear in the Securities Register. If the acceptance of appointment is
substantially contemporaneous with the resignation then the notice called for
by the preceding sentence may be combined with the notice called for by
Section 5.9 hereof. If the Issuer fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Issuer.
Notwithstanding replacement of the Trustee pursuant to this
Section 5.10, the Issuer's obligations under Section 5.6 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of
Section 5.8 hereof, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee, and in such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE VI
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders, in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 5.1 and Section 5.2 hereof) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities Record Date. Subject to Section 5.1 and Section 5.2 hereof, the
execution of any instrument by a Securityholder or his agent or proxy may be
provided in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The holding of Securities shall be proved by the Securities Register
or by a certificate of the Security Registrar thereof. The Issuer may set a
record date for purposes of determining the identity of Holders of Securities
entitled to vote or consent to any action referred to in Section 6.1 hereof,
which record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only Holders of Securities of record on such record
date shall be entitled to so vote or give such consent or to withdraw such
vote or consent.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Securities
Register as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal and Change of Control purchase price of, and premium, if any, on
and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon his order,
shall be valid and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities that are owned by the Issuer or any
other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the obligor on the Securities shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected
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in relying on any such direction, consent or waiver only Securities that the
Trustee knows are so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Issuer to be owned or held by or for the account of any of the above-described
Persons; and, subject to Section 5.1 and Section 5.2 hereof, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1 hereof, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the serial number of
which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all such Securities.
ARTICLE VII
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Eight hereof;
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(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and
continuance of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any
such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount
of the Securities to waive such an Event of Default;
(d) to cure any ambiguity or to cure, correct or supplement
any defective provision contained herein or in the Securities, or to
make such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the Board
of Directors may deem necessary or desirable, and in any case which
the Trustee and the Issuer shall determine (i) are not inconsistent
with this Indenture and the Securities and (ii) shall not adversely
affect the interests of the Holders of the Securities; and
(e) to modify or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the qualification
thereof under the Trust Indenture Act or any other similar federal
statute hereafter in effect.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 7.1 may be executed without the consent of the Holders of any of
the Securities at the time Outstanding, notwithstanding any of the provisions
of Section 7.2 hereof.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six
hereof) of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding, the Issuer, when authorized
by a resolution of its Board of Directors, and the Trustee may, from time to
time and at any time, modify this Indenture or any indentures supplemental
hereto or the rights of the Holders of the Securities; provided, that no such
supplemental indenture shall (a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Security, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption thereof or
upon a Change of Control or impair or affect the right of any Securityholder
to institute suit for the payment thereof or make any change to Section 3.10
hereof that adversely affects the rights of
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the Holders of the Securities, in each case without the consent of the Holder
of each Security so affected, or (b) without the consent of the Holders of all
Securities then Outstanding, (i) reduce the aforesaid percentage of
Securities, the consent of the Holders of which is required for any such
modification, or the percentage of Securities, the consent of the Holders of
which is required for any waiver provided for in this Indenture, (ii) change
any obligation of the Issuer to maintain an office or agency in the places and
for the purposes specified in Section 3.2 or (iii) make any change in Section
4.9 or this Section 7.2, except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holders of each Outstanding Security affected
thereby.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the Secretary or an
Assistant Secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders and other documents, if any, required by
Section 6.1 hereof the Trustee shall join with the Issuer in the execution of
such supplemental indenture unless such 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 supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 7.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this Section 7.2,
the Issuer shall mail a notice thereof by first-class mail to the Holders of
Securities at their addresses as they shall appear on the Securities Register,
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Section 5.1 and Section 5.2 hereof, may receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any such supplemental indenture complies with the applicable provisions of
this Indenture.
SECTION 7.5 Notation of Securities in Respect of
Supplemental Indentures. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Seven may bear a notation in form approved by the Trustee as
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to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by
the Trustee and delivered in exchange for the Securities then Outstanding.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or
Transfer Assets Except Under Certain Conditions. (a) The Issuer shall not
consolidate with or merge into any other Person, or sell, convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
and the Issuer shall not permit any Person to consolidate with or merge into
the Issuer, unless: (i) immediately prior to and immediately following such
consolidation, merger, sale or lease, no Event of Default shall have occurred
and be continuing and (ii) the Issuer is the surviving or continuing
corporation, or the surviving or continuing corporation or corporation that
acquires by sale, conveyance, transfer or lease is incorporated in the United
States of America or Canada and expressly assumes the payment and performance
of all obligations of the Issuer under the Indenture and the Securities.
(b) Except for the sale of the properties and assets of the
Issuer substantially as an entirety pursuant to subsection (a) above, and
other than assets required to be sold to conform with governmental
regulations, the Issuer shall not sell or otherwise dispose of any assets
(other than short-term, readily marketable investments purchased for cash
management purposes with funds not representing the proceeds of other asset
sales) if on a pro forma basis, the aggregate net book value of all such sales
during the most recent 12-month period would exceed 10 percent of Consolidated
Net Tangible Assets computed as of the end of the most recent fiscal quarter
preceding such sale; provided, however, that any such sales shall be
disregarded for purposes of this 10 percent limitation if the proceeds are
invested in assets in similar or related lines of business of the Issuer and,
provided further, that the Issuer may sell or otherwise dispose of assets in
excess of such 10 percent if the proceeds from such sales or dispositions,
which are not reinvested as provided above, are retained by the Issuer as cash
or cash equivalents or are used by the Issuer to purchase Securities which are
then delivered to the Trustee for cancellation.
SECTION 8.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale or transfer, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it
had been named herein.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder that theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation, instead of the Issuer, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
that previously shall have been signed and delivered
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by the officers of the Issuer to the Trustee for authentication and any
Securities that such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Securities so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or transfer
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or transfer (other than a
transfer by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article 8 shall
be discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee; Officers'
Certificate. The Trustee, subject to the provisions of Section 5.1 and Section
5.2 hereof, shall receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or transfer,
and any such assumption, and any such liquidation or dissolution, complies
with the applicable provisions of this Indenture.
ARTICLE IX
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at
any time (a) the Issuer shall have paid or caused to be paid the principal and
Change of Control purchase price of and premium, if any, and interest on all
the Securities Outstanding hereunder, as and when the same shall have become
due and payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.7 hereof) or (c)(i) all
such Securities not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 9.4
hereof) or U.S. Government Obligations, maturing as to principal, premium, if
any, and interest in such amounts and at such times as will insure (without
reinvestment) the availability of cash sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity all
such Securities not theretofore delivered to the Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to
such date of maturity as the case may be, and if, in any such case, the Issuer
shall also pay or cause to be paid all other
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sums payable hereunder by the Issuer, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and
exchange, and the Issuer's right to optional redemption, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of Holders to receive payments of principal thereof (including any
Change of Control purchase price previously accrued) and premium, if any, and
interest thereon, upon the original stated due dates therefor (but not upon
acceleration), (iv) the rights and obligations and immunities of the Trustee
hereunder and (v) the rights of the Securityholders as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them), and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture, provided that the rights of Holders of the
Securities to receive amounts in respect of principal of and premium, if any,
and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4 hereof, all moneys deposited
with the Trustee pursuant to Section 9.1 hereof shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for
principal and Change of Control purchase price, premium, if any, and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture all moneys
then held by any paying agent under the provisions of this Indenture shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal or Change of
Control purchase price of, or premium or interest on any Security and not
applied but remaining unclaimed for two years after the date upon which such
principal, Change of Control purchase price, premium or interest shall have
become due and payable shall, upon the written request of the Issuer, be
repaid to the Issuer by the Trustee or such paying agent, and the Holder of
such Security shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to
such moneys shall thereupon cease.
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SECTION 9.5 Defeasance and Discharge of Indenture. The
Issuer will be deemed to have paid and will be discharged from any and all
obligations in respect of the Securities, on the 123rd day after the deposit
referred to in subparagraph (A) hereof has been made, and the provisions of
this Indenture will no longer be in effect with respect to the Securities (and
the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except as to:
(a) rights of registration of transfer and exchange, and the
Issuer's right of optional redemption, (b) substitution of apparently
mutilated, defaced, destroyed, lost or stolen securities, (c) rights
of Holders to receive payments of principal (including rights to
receive any Change of Control purchase price previously accrued)
thereof and premium, if any, and interest thereon, (d) the rights,
obligations and immunities of the Trustee hereunder, (e) the rights
of the Securityholders as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them
and (f) the obligations of the Issuer to maintain a place of payment
for the Securities under Section 3.1 hereof;
provided that the following conditions shall have been satisfied:
(A) with reference to this Section 9.5 the Issuer
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying
the requirements of Section 5.8 hereof) as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities, (i)
money in an amount, or (ii) U.S. Government Obligations
which through the payment of interest and principal in
respect thereof in accordance with their terms (without
reinvestment) will provide not later than one day before the
due date of any payment referred to in clause (x) or (y) of
this subparagraph (A) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, after payment of all
federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, (x)
the principal and Change of Control purchase price of,
premium, if any, and each installment of principal and
interest on the Outstanding Securities at the maturity date
of such principal or installment of principal or interest
and (y) any mandatory sinking fund payments or analogous
payments applicable to the Securities on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and the Securities;
(B) the Issuer has delivered to the Trustee (i) an
Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for federal income tax
purposes as a result of the Issuer's exercise of its option
under this Section 9.5 and will be subject to federal income
tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit,
defeasance and discharge had not occurred, which Opinion of
Counsel must be based on (x) a change in applicable federal
income tax law or related Treasury Regulations after the
date of this Indenture or (y) a ruling received by the
Issuer
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from the Internal Revenue Service to the same effect and
(ii) an Opinion of Counsel to the effect that the defeasance
trust does not constitute an "investment company" under the
Investment Company Act of 1940, as amended, and after the
passage of 123 days following the deposit, the trust fund
will not be subject to the effect of Section 547 of the U.S.
Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law;
(C) immediately after giving effect to such deposit
on a pro forma basis, no Event of Default, or event that
after the giving of notice or lapse of time or both would
become an Event of Default, shall have occurred and be
continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and
such deposit shall not result in a breach or violation of,
or constitute a default under, any other agreement or
instrument to which the Issuer is a party or by which the
Issuer is bound; and
(D) if at such time the Securities are listed on a
national securities exchange, the Issuer has delivered to
the Trustee an Opinion of Counsel to the effect that the
Securities will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 9.6 Defeasance of Certain Obligations. The Issuer
may omit to comply with any term, provision, or condition set forth in this
Indenture in Sections 3.8 through 3.10, and Section 4.1(d) (with respect to
Sections 3.8 through 3.10) and Sections 4.1(c) and (e) shall be deemed not to
be Events of Default on the 123rd day after the deposit referred to in
subparagraph (A) hereof if
(A) with reference to this Section 9.6, the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
5.8 hereof) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms (without reinvestment)
will provide not later than one day before the due date of any
payment referred to in clauses (x) or (y) of this Section 9.6 money
in an amount, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, (x) the principal and Change of
Control purchase price of, premium, if any, and each installment of
principal and interest on the Outstanding Securities at the maturity
date of such principal or installment of principal or interest and
(y) any mandatory sinking fund payments or analogous payments
applicable to the Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and
the Securities;
(B) the Issuer has delivered to the Trustee (i) an Opinion
of Counsel to the effect that Holders will not recognize income, gain
or loss for federal income tax purposes as a result of the Issuer's
exercise of its option under this Section 9.6 and will be subject
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to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, and (ii) an Opinion of
Counsel to the effect that the defeasance trust does not constitute
an "investment company" under the Investment Company Act of 1940, as
amended, and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of Section 547 of the
U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Issuer is a party or by which the Issuer is bound; and
(D) if at such time the Securities are listed on a national
securities exchange, the Issuer has delivered to the Trustee an
Opinion of Counsel to the effect that the Securities will not be
delisted as a result of such deposit, defeasance and discharge.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Shareholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 10.2 Provisions of the Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and their successors and the Holders
(and, where expressly set forth herein, owners of interests in any Global
Security), any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their
successors and the Holders (and, where expressly set forth herein, owners of
interests in any Global Security).
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
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SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the
Holders to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to NRG Energy, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office or such office or agency
designated for such purpose in Section 3.2 hereof.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Securities
Register. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
and Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture 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 has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such Person, such condition or covenant has been complied
with.
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Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or Opinion of Counsel
may be based, insofar as it relates to factual matters (information with
respect to which is in the possession of the Issuer) upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants or Investment Banker filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal, Change of
Control purchase price, or premium, if any, of the Securities or the date
fixed for redemption of any Security shall not be a Business Day, then payment
of interest, principal, Change of Control purchase price or premium need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.
SECTION 10.7 New York Law to Govern. THIS INDENTURE SHALL,
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE
OF LAW PROVISIONS THEREOF (OTHER THAN SUCH SECTION 5- 1401).
SECTION 10.8 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same agreement.
SECTION 10.9 Effect of Headings. The Article and Section
Headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
-48-
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption Price. The Issuer
at its option may, at any time on or after February 1, 2001, redeem the
Securities, in whole or in part, upon payment of a redemption price equal to
the principal amount of the Securities to be redeemed plus accrued and unpaid
interest thereon, if any, plus the Applicable Premium.
SECTION 11.2 Notice of Redemption. Notice of redemption to
the Holders of Securities to be redeemed shall be given by the Issuer by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities at their last addresses as they shall appear in
the Securities Register. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each Holder shall specify that
the Securities are being redeemed pursuant to this Article 11, the date fixed
for redemption, the place or places of payment, the CUSIP and ISIN numbers (as
applicable), that payment will be made upon presentation and surrender of the
Securities, that interest accrued to the date fixed for redemption will be
paid as specified in this Article and that, on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue.
The notice of redemption of Securities to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section 11.2,
the Issuer shall deposit with the Trustee or with one or more paying agents
(or, if the Issuer is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 3.4 hereof) an amount of money sufficient
to redeem on the redemption date all the Securities so called for redemption.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities shall
become due and payable on the date and at the place stated in such notice at
the redemption price, and on and after said date (unless the Issuer shall
default in the payment of such Securities at the redemption price) interest on
the Securities or portions of Securities so called for redemption shall cease
to accrue and, except as provided in Section 5.5 and Section 9.4 hereof, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities
shall be paid and redeemed by the Issuer at the redemption price; provided,
that any semi-annual payment of interest becoming due on the date fixed for
redemption shall be payable to the Holders of such Securities registered as
such on the relevant record date subject to the terms and provisions of
Section 2.4 hereof.
-49-
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate
borne by the Security.
-50-
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of January 31, 1996.
NRG ENERGY, INC.,
as Issuer
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and CFO
Attest:
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
-51-
EXHIBIT A
FORM OF SECURITY
[INCLUDE IF SECURITY IS A GLOBAL SECURITY DEPOSITED WITH THE U.S.
DEPOSITARY -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.6 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
THE SENIOR NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION THEREOF, THE HOLDER (1)
AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS THREE YEARS (OR SUCH SHORTER
PERIOD AS IS PRESCRIBED BY PARAGRAPH (k) OF RULE 144 UNDER THE SECURITIES ACT
AS THEN IN EFFECT) AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE SENIOR NOTE
EVIDENCED HEREBY AND THE LAST DATE ON WHICH NRG ENERGY, INC. (THE "COMPANY")
OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY WAS THE OWNER OF THE SENIOR NOTE (THE "RESTRICTION TERMINATION DATE")
RESELL OR OTHERWISE TRANSFER THE SENIOR NOTE EVIDENCED HEREBY EXCEPT (A) TO
THE COMPANY, (B) TO A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A, (C) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E)
A-1
PURSUANT TO ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT; AND (2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE SENIOR NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IF THE SENIOR NOTE EVIDENCED HEREBY IS ISSUED IN
CERTIFICATED FORM, IN CONNECTION WITH ANY TRANSFER OF THE SENIOR NOTE
EVIDENCED HEREBY BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IN
CONNECTION WITH ANY PROPOSED TRANSFER OF THE SENIOR NOTE EVIDENCED HEREBY
PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED UPON THE RESTRICTION TERMINATION DATE.
[FORM OF FACE OF SECURITY]
CUSIP [▇▇▇▇▇▇▇▇▇][▇▇▇▇▇▇▇▇▇][▇▇▇▇▇▇▇▇▇]
[Common Code]
[ISIN][USU66962AA65]
No.
$
NRG ENERGY, INC.
7.625% Senior Notes Due 2006
NRG Energy, Inc. (the "Issuer"), for value received hereby promises
to pay to ___________________ or registered assigns the principal sum of
____________ Dollars at the Issuer's office or agency for said purpose
initially at the Corporate Trust Office of Norwest Bank Minnesota, National
Association (herein called the "Trustee") at Corporate Trust, Norwest Center,
Sixth and Marquette, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and at the office or
agency of the Issuer for said purpose in the Borough of Manhattan, The City of
New York, on February 1, 2006 in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually in arrears on
February 1 and August 1 of each year, commencing August 1, 1996, on said
principal sum in like coin or currency at the rate per annum set forth above
at said offices or agencies from the most recent interest payment date to
which interest on the Securities has been paid or duly provided for, unless
the date hereof is a date to which interest on the Securities has been paid or
duly provided for, in which case from the date of this Security, or unless no
interest has been paid or duly provided for on the Securities, in which case
from January 31,
A-2
1996, until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing (unless the date hereof is January 31, 1996), if
the date hereof is after January 15th or July 15, as the case may be, and
before the following February 1 or August 1, this Security shall bear interest
from such February 1 or August 1; provided, that if the Issuer shall default
in the payment of interest due on such February 1 or August 1, then this
Security shall bear interest from the next preceding February 1 or August 1 to
which interest on the Securities has been paid or duly provided for, or, if no
interest has been paid or duly provided for on the Securities, from January
31, 1996. The interest so payable on any February 1 or August 1 will, except
as otherwise provided in the Indenture referred to on the reverse hereof, be
paid to the Person in whose name this Security is registered at the close of
business on the 15th day of January or the 15th day of July preceding such
February 1 or August 1, whether or not such day is a Business Day; provided,
that principal, premium, if any, and interest shall be paid by mailing a check
for such to or upon the written order of the registered Holders of Securities
entitled thereto at their last address as it appears on the Securities
Register or, upon written application to the Trustee by a Holder of $1,000,000
or more in aggregate principal amount of Securities, by wire transfer of
immediately available funds to an account maintained by such Holder with a
bank or other financial institution. Interest on this Security shall be
computed on the basis of a 360-day year of twelve 30-day months.
Interest on overdue principal and (to the extent permitted by
applicable law) on overdue installments of interest (including without
limitation during the 30-day period referred to in Section 4.1(b)) shall
accrue at the rate per annum set forth above.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
A-3
This Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory, until the certificate of authentication
hereon shall have been duly signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
NRG ENERGY, INC.
[Seal]
By: ___________________________________
Title:
ATTEST:
______________________________ By: ___________________________________
Name: Title:
Title:
A-4
[FORM OF REVERSE OF SECURITY]
NRG ENERGY, INC.
7.625% Senior Notes Due 2006
This Security is one of a duly authorized issue of debt securities of
the Issuer, limited to the aggregate principal amount of $125,000,000 (except
as otherwise provided in the Indenture mentioned below), issued or to be
issued pursuant to an Indenture dated as of January 31, 1996 (the
"Indenture"), duly executed and delivered by the Issuer to the Trustee.
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and the Holders
(the words "Holders" or "Holder" meaning the registered holders or registered
holder) of the Securities. Capitalized terms used herein, but not otherwise
defined herein, shall have the meanings assigned to them in the Indenture.
In case an Event of Default shall have occurred and be continuing,
the principal of all the Securities may be declared due and payable, in the
manner and with the effect, and subject to the conditions, provided in the
Indenture. The Indenture provides that in certain events such declaration and
its consequences may be waived by the Holders of a majority in aggregate
principal amount of the Securities then Outstanding and that, prior to any
such declaration, such Holders may waive any past default under the Indenture
and its consequences except a default in the payment of principal of or
premium, if any, or interest on any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Security which may be
issued in exchange or substitution hereof, whether or not any notation thereof
is made upon this Security or such other Securities.
The Indenture permits the Issuer and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, evidenced as in the Indenture provided, to
modify the Indenture or any supplemental indentures or the rights of the
Holders of the Securities; provided that no such modification shall (a) change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
amount payable on the redemption thereof or impair or affect the rights of any
Securityholder to institute suit for the payment thereof or make any change in
Section 3.10 of the Indenture (which relates to the obligation of the Issuer
to offer to purchase the Securities upon a Change of Control, as described
below) which adversely affects the rights of the Holders of the Securities
without the consent of the Holder of each Security so affected; (b) reduce the
aforesaid percentage of Securities, the consent of the Holders of which is
required for any such modification or the percentage of Securities, the
consent of Holders of which is required for any waiver provided for in the
Indenture; (c) change any obligation of the Issuer to maintain an office or
agency for
A-5
payment of and transfer and exchange of the Securities; or (d) make certain
changes to provisions relating to waiver or to the provision for supplementing
the Indenture; in each case without consent of the Holders of all Securities
then Outstanding.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Security at the place, times, and rate,
and in the currency, herein prescribed.
The Securities are issuable only as registered Securities without
coupons in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof.
At the office or agency of the Issuer referred to on the face hereof
and in the manner subject to the limitations provided in the Indenture,
Securities may be presented for exchange for a like aggregate principal amount
of Securities of other authorized denominations.
Upon due presentment for registration of transfer of this Security at
the above-mentioned office or agency of the Issuer, a new Security or
Securities of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. No service
charge shall be made for any such transfer, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
The Securities may be redeemed in whole or in part (if in part, by
lot or by such other method as the Trustee shall deem fair or appropriate)
prior to Stated Maturity at the option of the Issuer, on any date on or after
February 1, 2001, upon mailing a notice of such redemption not less than 30
nor more than 60 days prior to the date fixed for redemption to the Holders of
Securities, all as provided in the Indenture, at a redemption price equal to
the principal amount thereof plus accrued and unpaid interest thereon, if any,
to the date of redemption, plus the Applicable Premium. The Applicable Premium
shall be computed by an independent investment banking institution of national
standing selected by the Issuer and shall equal the excess (if any) of (i) the
sum of the present values of all the remaining scheduled payments of principal
and interest from the redemption date to maturity of the Security computed on
a semi-annual basis by discounting such payments using a rate equal to the
Treasury Rate (as defined in the Indenture) plus 50 basis points over (ii) the
aggregate unpaid principal amount of the Security to be redeemed, plus any
accrued but unpaid interest thereon.
In the event of a Change of Control (as defined in the Indenture),
the Issuer has the obligation, subject to certain conditions, to offer to
purchase the Securities at 101% of the principal amount thereof plus accrued
interest to the date of purchase in accordance with the procedures set forth
in the Indenture. As further described in the Indenture, a Change of Control
will not be deemed to have occurred if, after giving effect thereto, the
Securities are rated Investment Grade (as defined in the Indenture).
Subject to payment by the Issuer of a sum sufficient to pay the
amount due on redemption, interest on this Security shall cease to accrue upon
the date duly fixed for redemption of this Security.
A-6
The Issuer, the Trustee, and any authorized agent of the Issuer or
the Trustee, may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Issuer or the Trustee or any authorized agent of the
Issuer or the Trustee), for the purpose of receiving payment of, or on account
of, the principal hereof and premium, if any, and, subject to the provisions
on the face hereof, interest hereon and for all other purposes, and neither
the Issuer nor the Trustee nor any authorized agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on this Security, for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
A-7
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
--------------------------------
Authorized Signatory
[FORM OF ASSIGNMENT]
I or we assign and transfer this Security to:
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Agent to transfer this Security on the books of the Issuer. The Agent may
substitute another to act for him.
Date:__________________ Your Signature:___________
----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
*Signature Guarantee:________________________
*Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in STAMP or such
other "signature guarantee program" as may be determined
A-8
by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934.
[FORM OF OPTION OF HOLDER TO ELECT PURCHASE]
If you wish to have this Security purchased by the Issuer pursuant to
Section 3.10 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the
Issuer pursuant to Section 3.10 of the Indenture, state the amount (in
original principal amount):
$-------------------.
Date: __________________ Your Signature: ___________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: ___________________________
-----------------------------------
A-9
EXHIBIT B
FORM OF RESTRICTED PERIOD CERTIFICATE
NRG ENERGY, INC.
[DATE]
The Depository Trust Company
[Address]
Norwest Bank Minnesota, North America,
As Trustee
Corporate Trust
Norwest Center
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: NRG Energy, Inc. 7.625% Senior Notes Due 1996
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of
January 31, 1996 (the "Indenture") from NRG Energy, Inc., to Norwest Bank
Minnesota N.A., as Trustee. Capitalized terms used and not defined herein
shall have the meanings given them in the Indenture.
This letter is related to U.S. $______________ principal
amount of Securities represented by the Restricted Regulation S Global
Security, held by the Trustee pursuant to Section 2.4 of the Indenture. We
hereby certify that the offering of the Securities has closed and that the
restricted period (as defined in Regulation S) with respect to the offer and
sale of the Securities has terminated.
NRG ENERGY, INC.
By:
-----------------------
Name:
Title:
cc: Euroclear
CEDEL
B-1
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL SECURITY
OR IAI GLOBAL SECURITY TO RESTRICTED REGULATION S GLOBAL SECURITY
(Transfers or exchanges pursuant to
Section 2.6(b)(ii) of the Indenture)
Norwest Bank Minnesota, North America,
as Trustee
Corporate Trust
Norwest Center
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: NRG Energy, Inc. 7.625% Senior Notes
Due 2006 (the "Securities")
Reference is hereby made to the Indenture dated as of
January 31, 1996 (the "Indenture") from NRG Energy, Inc. to Norwest Bank
Minnesota N.A., as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to U.S.$______________ principal amount
of Securities which are held in the form of the [Rule 144A] [IAI] Global
Security (CUSIP No.[▇▇▇▇▇▇▇▇▇][▇▇▇▇▇▇▇▇▇]) with the U.S. Depositary in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer or exchange of such beneficial interest for an interest
in the Restricted Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) to be
held with [Euroclear] [Cedel] (Common Code ________) through the U.S.
Depositary.
In connection with such request and in respect of such
Securities, the Transferor does hereby certify that such transfer or exchange
has been effected in accordance with the transfer restrictions set forth in
the Indenture and the Securities and pursuant to and in accordance with
Regulation S under the Securities Act, and accordingly the Transferor does
hereby certify that:
(1) the offer of the Securities was not made to a person in
the United States;
[(2) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was outside the
United States,]*
C-1
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States,]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Issuer and the Initial
Purchasers.
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
Dated: ____________________________, 199__
cc: NRG Energy, Inc.
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL SECURITY
OR IAI GLOBAL SECURITY TO UNRESTRICTED REGULATION S GLOBAL SECURITY
(Exchanges or transfers Pursuant to ss. 2.6(b)(iii)
of the Indenture)
Norwest Bank Minnesota, North America,
as Trustee
Corporate Trust
Norwest Center
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: NRG Energy, Inc. 7.625% Senior Notes
Due 2006 (the "Securities")
Reference is hereby made to the Indenture dated as of
January 31, 1996 (the "Indenture") NRG Energy, Inc., to Norwest Bank Minnesota
N.A., as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to U.S.$______________ principal amount
of Securities which are held in the form of the [Rule 144A] [IAI] Global
Security (CUSIP No. [▇▇▇▇▇▇▇▇▇][▇▇▇▇▇▇▇▇▇]) with the U.S. Depositary in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested an exchange or transfer of such beneficial interest in the
Securities for an interest in the Unrestricted Regulation S Global Security
(CUSIP No. ▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such
Securities, the Transferor does hereby certify that such exchange or transfer
has been effected in accordance with the transfer restrictions set forth in
the Indenture and the Securities and, (i) with respect to transfers made in
reliance on Regulation S under the Securities Act, the Transferor does hereby
certify that:
(1) the offer of the Securities was not made to a person in
the United States;
[(2) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the transferee
was outside the United States,]*
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting
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on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the United States Securities Act of
1933, as amended (the "Securities Act");
(ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, certify that the Securities are being transferred in a
transaction permitted by Rule 144 under the Securities Act,
(iii) with respect to transfers made in reliance on another exemption from the
Securities Act (including without limitation Rule 144A), the following is the
basis for the exemption:_________________, and
(iv) with respect to an exchange, either (x) the Security being exchanged is
not a "restricted security" as defined in Rule 144 under the Securities Act or
(y) the exchange is being made to facilitate a contemporaneous transfer that
complies with Section 2.6(b)(iii) of the Indenture.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Issuer and the Initial
Purchasers.
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated:___________________________, 199__
cc: NRG Energy, Inc.
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
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EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM RESTRICTED REGULATION S GLOBAL SECURITY, UNRESTRICTED
REGULATION S GLOBAL SECURITY OR
IAI GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
(Exchanges or transfers Pursuant to
Section 2.6(b)(iv) of the Indenture)
Norwest Bank Minnesota, North America,
as Trustee
Corporate Trust
Norwest Center
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: NRG Energy, Inc. 7.625% Senior Notes
Due 2006 (the "Securities")
Reference is hereby made to the Indenture dated as of
January 31, 1996 (the "Indenture") from NRG Energy, Inc. to Norwest Bank
Minnesota N.A., as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to U.S. $______________ principal amount
of Securities which are held in the form of the [[Restricted][Unrestricted]
Regulation S Global Security (CUSIP No. U66926AA6) with [Euroclear] [Cedel].*
(Common Code _______)] [IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)] through the
U.S. Depositary in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer or exchange of such beneficial
interest in the Securities for an interest in the Rule 144A Global Security.
In connection with such request, and in respect of such
Securities, the Transferor does hereby certify that such Securities are being
transferred or exchanged in accordance with (i) the transfer restrictions set
forth in the Securities and (ii) Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion and the transferee and any
such account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting the
* Select appropriate depositary.
E-1
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Issuer and the Initial
Purchasers.
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated:___________________________, 199__
cc: NRG Energy, Inc.
E-2
EXHIBIT F
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OR EXCHANGE FROM RULE 144A GLOBAL SECURITY, RESTRICTED
REGULATION S GLOBAL SECURITY OR UNRESTRICTED REGULATION S GLOBAL
SECURITY
TO IAI GLOBAL SECURITY
(Exchanges or transfers Pursuant to
Section 2.6(b)(v) of the Indenture)
Norwest Bank Minnesota, North America,
as Trustee
Corporate Trust
Norwest Center
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: NRG Energy, Inc. 7.625% Senior Notes
Due 2006 (the "Securities")
Reference is hereby made to the Indenture dated as of
January 31, 1996 (the "Indenture") from NRG Energy, Inc. to Norwest Bank
Minnesota N.A., as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to U.S.$______________ principal amount
of Securities which are held in the form of the [Rule 144A Global Security
(CUSIP No. ▇▇▇▇▇▇▇▇▇) with the U.S. Depositary] [[Restricted][Unrestricted]
Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) with [Euroclear] [Cedel]]*
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested an exchange or transfer of such Global Security for an interest
in the IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇).
In connection with such request with respect to a transfer
or exchange for an interest in the IAI Global Security, the Transferor does
hereby certify that such exchange or transfer has been effected in accordance
with the transfer restrictions set forth in the Rule 144A Global Security, the
Restricted Regulation S Global Security and the Unrestricted Regulation S
Global Security (as the case may be) and, with respect to transfers made in
reliance on Rule 144 under the Securities Act, certify that the Securities are
being transferred in a transaction permitted by Rule 144 under the Securities
Act.
In connection with such request with respect to a transfer
or exchange for an interest in the IAI Global Security, and in respect of such
Rule 144A Global Security,
--------
* Select appropriate depositary.
F-1
Restricted Regulations S Global Security and Unrestricted Regulation S Global
Security (as the case may be), the Transferor does hereby certify that such
Global Security is being transferred or exchanged in accordance with (i) the
transfer restrictions set forth in the Global Securities and (ii) in
accordance with the Securities Act to a transferee that the Transferor
reasonably believes is purchasing the IAI Global Securities for its own
account or an account with respect to which the transferee exercises sole
investment discretion and the transferee and any such account is an
institution that is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act, in each case purchasing
IAI Global Securities in a transaction exempt from the Securities Act and in
accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Issuer and the Initial
Purchasers.
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated:_________________________, 199__
cc: NRG Energy, Inc.
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