<PAGE> 1
As filed with the Securities and Exchange Commission on March 16, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NRG ENERGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1724239
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1221 NICOLLET MALL, SUITE 700
MINNEAPOLIS, MINNESOTA 55403
(612) 373-5300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JAMES J. BENDER, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
NRG ENERGY, INC.
1221 NICOLLET MALL, SUITE 700
MINNEAPOLIS, MINNESOTA 55403
(612) 373-5300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH COPIES TO:
RICHARD M. RUSSO, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1801 CALIFORNIA ST., SUITE 4100
DENVER, COLORADO 80202
(303) 298-5700
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|x|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.|_| __________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_| __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO AGGREGATE PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED BE REGISTERED UNIT(1) PRICE (1) REGISTRATION FEE
- ---------------------------------------------- ----------------- ------------------------- ----------------------- -----------------
<S> <C> <C> <C> <C>
Debt Securities $500,000,000 100% $500,000,000 $139,000
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 16, 1999
$500,000,000
NRG ENERGY, INC.
DEBT SECURITIES
We may sell at various times up to U.S. $500,000,000 worth of notes,
debentures or other debt securities in one or more series with the same or
different terms. We may sell the debt securities through agents, dealers or
underwriters we designate from time to time. We will determine the specific
terms of the debt securities at the time we sell them and include the following
information in a prospectus supplement:
- - Total amount of securities offered - Currencies or currency units in
which the debt securities are
denominated or payable
- - Maturity date of debt securities - Form of debt securities
(registered, bearer or
uncertificated)
- - Interest rates or method of - Whether the debt securities
calculating interest rates will be represented initially
by a single temporary or
permanent global note
- - Interest payment dates - Agent, dealer or underwriter,
if any
- - Purchase price - Commission an agent will
receive or discount a dealer
or underwriter will receive
and an estimate of the net
proceeds we will receive
- - Terms for repayment or redemption, - Any other terms applicable to
if any the debt securities
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
----------------
THE DATE OF THIS PROSPECTUS IS MARCH , 1999
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No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized. This prospectus does not constitute an
offer to sell or the solicitation of an offer to buy any securities other than
the securities described in this prospectus or an offer to sell or the
solicitation of an offer to buy such securities in any circumstances in which
such offer or solicitation is unlawful. Neither the delivery of this prospectus,
nor any sale made hereunder, shall, under any circumstances, create any
implication that there has been no change in our affairs since the date hereof
or that the information contained or incorporated by reference herein is correct
as of any time subsequent to the date of such information.
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION............................................3
FORWARD-LOOKING STATEMENTS.....................................................4
THE COMPANY....................................................................5
USE OF PROCEEDS................................................................5
EARNINGS TO FIXED CHARGES RATIO................................................5
DESCRIPTION OF THE NOTES.......................................................6
PLAN OF DISTRIBUTION..........................................................15
LEGAL MATTERS.................................................................15
EXPERTS.......................................................................16
2
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC
at 1-800-732-0330 for further information on the public reference rooms. You may
also obtain copies of these materials from the public reference section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Our
SEC filings are also available to the public from the SEC's web site at
http://www.sec.gov.
We have filed a registration statement on Form S-3 with the SEC under
the Securities Act of 1933, as amended. This prospectus does not contain all of
the information set forth in the registration statement. You should read the
registration statement for further information about us and the debt securities.
You may inspect the registration statement and its exhibits without charge at
the office of the SEC at 450 Fifth Street, N.W., in Washington, D.C. 20549, and
you may obtain copies from the SEC at prescribed rates.
The SEC allows us to "incorporate by reference" the information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. The information filed by us with the
SEC in the future will update and supersede this information. We incorporate by
reference the documents listed below and any future filings made by us with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, until we sell all the debt securities:
1. Our Annual Report on Form 10-K for the fiscal year ended December
31, 1997;
2. Our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998;
3. Our Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1998;
4. Our Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1998; and
5. Our Current Reports on Form 8-K filed January 16, 1998 and October
6, 1998.
You may request a copy of these filings, at no cost, by writing or
calling us at the following address or telephone number:
Investor Relations
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, Minnesota 55403
(612) 373-5300
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of these documents.
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FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference statements that
do not directly or exclusively relate to historical facts. Such statements are
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. You can typically identify forward-looking
statements by the use of forward-looking words, such as "may," "will," "could,"
"project," "believe," "anticipate," "expect," "estimate," "continue,"
"potential," "plan," "forecasts," and the like. These statements represent our
intentions, plans, expectations and beliefs and are subject to risks,
uncertainties and other factors. Many of these factors are outside our control
and could cause actual results to differ materially from such forward-looking
statements. These factors include, among others:
- general economic conditions in countries in which we do business
- industry restructuring, changes in the market price of electricity and
industry capacity
- demographic changes
- technology changes
- changes in electricity usage patterns and practices
- changes in fuel pricing
- our ability to become Year 2000 ready and the ability of our customers
and suppliers to become Year 2000 ready
<PAGE> 6
THE COMPANY
GENERAL
We are one of the leading participants in the independent power
generation industry. We are principally engaged in the acquisition, development
and operation of, and ownership of interests in, independent power production
and co-generation facilities, thermal energy production and transmission
facilities and resource recovery facilities. The power generation facilities in
which we currently have interests (including those under construction) as of
December 31, 1998 have a total design capacity of 10,605 megawatts ("MW"), of
which we have or will have total or shared operational responsibility for 6,966
MW and net ownership of, or leasehold interests in, 3,300 MW. In addition, we
have substantial interests in district heating and cooling systems and steam
generation and transmission operations. As of December 31, 1998, these thermal
businesses had a steam capacity of approximately 3,750 million British thermal
units per hour. Our refuse-derived fuel ("RDF") plants processed more than
1,350,000 tons of municipal solid waste into approximately 1,100,000 tons of RDF
during 1998.
We have experienced significant growth in the last year, expanding from
2,650 MW of net ownership interests in power generation facilities (including
those under construction) as of December 31, 1997 to 3,300 MW of net ownership
interests as of December 31, 1998. This growth resulted primarily from a number
of domestic and international investments and acquisitions.
Our headquarters and principal executive offices are located at 1221
Nicollet Mall, Suite 700, Minneapolis, Minnesota 55403. Our telephone number is
(612) 373-5300. We were established in 1989 and are a wholly-owned subsidiary of
Northern States Power Company ("NSP").
USE OF PROCEEDS
Unless otherwise specified in the supplement which accompanies this
prospectus, we will use the net proceeds from the sale of the debt securities
for general corporate purposes, which may include financing the development and
construction of new facilities, additions to working capital, reductions of our
indebtedness and the indebtedness of our subsidiaries, financing of capital
expenditures and pending or potential acquisitions. We may invest funds not
immediately required for such purposes in short-term investment grade
securities. The amount and timing of sales of the debt securities will depend on
market conditions and the availability to us of other funds.
EARNINGS TO FIXED CHARGES RATIO
The following table sets forth the ratio of our earnings to our fixed
charges for the periods indicated:
Year ended December 31,
--------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
Ratio of earnings to fixed
charges(1)....... 0.86x 1.16x 1.75x 1.56x 2.98x
- ------------------------
(1) The ratio of earnings to fixed charges is calculated by dividing earnings by
fixed charges. For this purpose "earnings" means income (loss) before income
taxes less undistributed equity in our share of operating earnings of
unconsolidated affiliates less equity in gain from project termination
settlements plus cash distributions from project termination settlements plus
fixed charges. "Fixed charges" means
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interest expense plus interest capitalized plus amortization of debt issuance
costs plus a reasonable approximation of the interest factor of rental expenses.
DESCRIPTION OF THE NOTES
This prospectus describes the general terms and provisions of our debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement whether the general terms
and provisions described in this prospectus apply to a particular series of debt
securities.
The following summaries of certain provisions of the indenture and the
debt securities do not purport to be complete. Except to the extent set forth in
the supplement with respect to a particular issue of debt securities, the
indenture or indentures for the debt securities will be substantially similar.
Unless otherwise stated in the supplement, the trustee under the first indenture
under which debt securities will be issued will be Norwest Bank Minnesota,
National Association. (See "Concerning the Trustee.")
GENERAL
The debt securities will be unsecured senior obligations of the
Company, as set forth in the accompanying supplement. Because we conduct
substantially all of our business through numerous subsidiaries and affiliates,
all existing and future liabilities of our direct and indirect subsidiaries and
affiliates will be effectively senior to the debt securities. The debt
securities will not be guaranteed by, or otherwise be obligations of, our
project subsidiaries and project affiliates, or our other direct and indirect
subsidiaries and affiliates or NSP.
Reference is made to the accompanying supplement for the following
terms of and information relating to the debt securities (to the extent such
terms are applicable to such debt securities):
- the specific designation, aggregate principal amount, purchase price
and denomination;
- the date of maturity;
- the interest rate or rates (or the method by which such rate will be
determined), if any;
- the date from which interest will accrue and dates on which any such
interest will be payable;
- our rights to defer interest, if any;
- the place or places where the principal of, premium, if any, and
interest, if any, on the debt securities will be payable;
- any redemption, repayment or sinking fund provisions;
- our obligation, if any, to offer to purchase the debt securities in the
event of a "Change of Control" (as defined below);
- any applicable material federal income tax consequences; and
- any other material specific terms of the debt securities, including any
material additional events of default or covenants provided for with
respect to the debt securities and any material terms that may be
required by or advisable under applicable laws or regulations.
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The debt securities will bear interest at a fixed rate or a floating
rate. Debt securities bearing no interest or interest at a rate that at the time
of issuance is below the prevailing market rate may be sold or deemed to be sold
at a discount below their stated principal amount. With respect to any debt
securities as to which we have the right to defer interest, the holders of such
debt securities may be allocated interest income for federal and state income
tax purposes without receiving equivalent, or any, interest payments. Any
material federal income tax considerations applicable to any such discounted
debt securities or to certain debt securities issued at par that are treated as
having been issued at a discount for federal income tax purposes will be
described in the supplement.
GLOBAL DEBT SECURITIES
If any debt securities are represented by one or more global
securities, the applicable supplement will describe the terms of the depositary
arrangement with respect to such global securities.
REDEMPTION
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that, we, at any time, may redeem the debt
securities, in whole or in part (if in part, by lot or by such other method as
the trustee shall deem fair or appropriate) at the redemption price of 100% of
principal amount of such debt securities, plus accrued interest on the principal
amount, if any, to the redemption date, plus the applicable "Make-Whole Premium"
(as discussed below).
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that, to determine the applicable Make-Whole Premium
for any debt security, an independent investment banking institution of national
standing that we select will compute, as of the third business day prior to the
redemption date, the sum of the present values of all of the remaining scheduled
payments of principal and interest from the redemption date to maturity on such
debt security computed on a semiannual basis by discounting such payments
(assuming a 360-day year consisting of twelve 30-day months) using a rate to be
set forth in the supplement. If the sum of these present values of the remaining
payments as computed above exceeds the aggregate unpaid principal amount of the
debt security that we will redeem plus any accrued but unpaid interest thereon,
the difference will be payable as a premium upon redemption of such debt
security. If the sum is equal to or less than such principal amount plus accrued
interest, we will pay no premium with respect to such debt security.
CERTAIN COVENANTS OF THE COMPANY
AFFIRMATIVE COVENANTS
In addition to such other covenants, if any, as may be described in the
accompanying supplement and except as may otherwise be set forth therein, the
indenture will require us, subject to certain limitations described therein, to,
among other things, do the following:
- deliver to the trustee copies of all reports filed with the SEC;
- deliver to the trustee annual officers' certificates with respect to
our compliance with our obligations under the indenture;
- maintain our corporate existence subject to the provisions described
below relating to mergers and consolidations; and
- pay our taxes when due except where we are contesting such taxes in
good faith.
The indenture may also, as set forth in the accompanying supplement, restrict
our business or operations or that of our subsidiaries or limit our
indebtedness.
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RESTRICTIONS ON LIENS
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that, so long as any of the debt securities are
outstanding, we will not pledge, mortgage, hypothecate or permit to exist any
mortgage, pledge or other lien upon any property at any time directly owned by
us to secure any indebtedness for money borrowed which is incurred, issued,
assumed or guaranteed by us ("Indebtedness"), without making effective
provisions whereby the debt 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 date of issuance of the debt securities; (ii) purchase money
liens which do not exceed the cost or value of the purchased property; (iii)
other liens not to exceed 10% of our "Consolidated Net Tangible Assets" (defined
below) and (iv) liens granted in connection with extending, renewing, replacing
or refinancing in whole or in part the Indebtedness (including, without
limitation, increasing the principal amount of such Indebtedness) secured by
liens described in the foregoing clauses (i) through (iii). Except as may
otherwise be provided in the accompanying supplement, "Consolidated Net Tangible
Assets" will be defined as the following: as of the date of any determination
thereof, the total amount of all our assets determined on a consolidated basis
in accordance with GAAP as of such date less the sum of (a) our consolidated
current liabilities determined in accordance with GAAP and (b) assets properly
classified as intangible assets, in accordance with GAAP.
Except as may otherwise be set forth in the accompanying supplement,
the indenture will further provide that, in the event we propose to pledge,
mortgage or hypothecate any property at any time directly owned by us to secure
any Indebtedness, other than as permitted by clauses (i) through (iv) of the
previous paragraph, we will agree to give prior written notice thereof to the
trustee, who shall give notice to the holders of debt securities, and we will
further agree, prior to or simultaneously with such pledge, mortgage or
hypothecation, effectively to secure all the debt securities equally and ratably
with such Indebtedness.
The foregoing covenant will not restrict the ability of our
subsidiaries and affiliates to pledge, mortgage, hypothecate or permit to exist
any mortgage, pledge or lien upon their assets, in connection with project
financings or otherwise.
CHANGE OF CONTROL
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that, if a Change of Control occurs, we will be
obligated to offer to purchase all outstanding debt securities. We will conduct
any offer to purchase debt securities upon a Change of Control in compliance
with applicable regulations under the federal securities laws, including
Exchange Act Rule 14e-l. Any limitations on our financial ability to purchase
debt securities upon a Change of Control will be described in the accompanying
supplement.
Except as may otherwise be provided in the accompanying supplement, a
"Change of Control" will be defined in the indenture as any of the following:
- NSP (or its successors) ceases to own a majority of our outstanding
voting stock
- at any time following the occurrence of the event described immediately
above, a person or group of persons (other than NSP) becomes the
beneficial owner, directly or indirectly, or has the absolute power to
direct the vote of more than 35% of our voting stock; or
- during any one year period, individuals who at the beginning of such
period constitute our board of directors cease to be a majority of the
board of directors (unless approved by a majority of the current
directors then in office who were either directors at the beginning of
such period or who were previously so approved).
<PAGE> 10
A Change of Control shall be deemed not to have occurred if, following such an
event described above, the debt securities are rated BBB- or better by Standard
& Poor's Ratings Group and Baa3 or better by Moody's Investors Service, Inc.
Except as may otherwise be set forth in the accompanying supplement, our failure
to comply with the Change of Control covenant as to the debt securities will be
an "Event of Default" (as defined below) under the indenture. See "Events of
Default" below.
Except as may be provided otherwise in the accompanying supplement, the
Change of Control provisions may not be waived by the trustee or the board of
directors, and any modification thereof must be approved by each holder of a
debt security. We cannot assure you that we would have sufficient liquidity to
effectuate any required repurchase of debt securities upon a Change of Control.
Except as may be provided otherwise in the accompanying supplement,
within 30 days following any Change of Control, we will be required to mail a
notice to each debt security holder (with a copy to the trustee) stating:
- that a Change of Control has occurred and that such holder has the
right to require us to repurchase such holder's debt securities
(the "Change of Control Offer");
- the circumstances and relevant facts regarding such Change of Control
(including information with respect to pro forma historical income,
cash flow and capitalization after giving effect to such Change of
Control);
- 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"));
- that interest on any debt security tendered will continue to accrue;
- that interest on any debt security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue after the Repurchase
Date;
- that debt security holders electing to have a debt security purchased
pursuant to a Change of Control Offer will be required to surrender the
debt security, with the form entitled "Option to Elect Purchase" on the
reverse of the debt security completed, to the trustee at the address
specified in the notice prior to the close of business on the
Repurchase Date;
- that debt security holders will be entitled to withdraw their election
if the trustee 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 or letter setting forth the name of the debt security holder,
the principal amount of debt securities the holder delivered for
purchase and a statement that such debt security holder is withdrawing
its election to have such debt securities purchased; and
- that debt security holders that elect to have their debt securities
purchased only in part will be issued new debt securities in a
principal amount equal to the unpurchased portion of the debt
securities surrendered.
MERGER, CONSOLIDATION, SALE, LEASE OR CONVEYANCE
Except as may otherwise be provided in the accompanying supplement, the
indenture will provide that we will not merge or consolidate with or into any
other person and we will not sell, lease or convey all or substantially all of
our assets to any person, unless we are the continuing corporation, or the
successor corporation or the person that acquires all or substantially all of
our assets is a corporation organized and existing under the laws of the United
States or a State thereof or the District of Columbia and expressly assumes all
of our obligations under the debt securities and the indenture, and, immediately
after such merger, consolidation, sale, lease or conveyance, such person or such
successor
<PAGE> 11
corporation is not in default in the performance of the covenants and
conditions in the indenture. The meaning of the term "all or substantially all
of the assets" has not been definitely established and is likely to be
interpreted by reference to applicable state law if and at the time the issue
arises and will be dependent on the facts and circumstances existing at the
time.
Except as may be provided otherwise in the accompanying supplement, the
indenture will provide that, except for a sale of our assets substantially as an
entirety as provided above, and other than assets we are required to sell to
conform with governmental regulations, we may 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% of our Consolidated Net
Tangible Assets computed as of the end of the most recent quarter preceding such
sale; provided, however, that any such sales shall be disregarded for purposes
of this 10% limitation if the proceeds are invested in assets in similar or
related lines of our business and, provided further, that we may sell or
otherwise dispose of assets in excess of such 10% if we retain the proceeds from
such sales or dispositions, which are not reinvested as provided above, as cash
or cash equivalents or we use the proceeds to purchase and retire the debt
securities.
REPORTING OBLIGATIONS
Except as may be provided otherwise in the accompanying supplement, the
indenture will provide that we will furnish or cause to be furnished to holders
of debt securities copies of our annual reports and of the information,
documents and other reports that we are required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act within 15 days after we file them
with the SEC.
EVENTS OF DEFAULT
Except as may be described in the accompanying supplement, an "Event of
Default" will be defined under the indenture as being:
(a) our failure to pay any interest on any senior debt security when
due, which failure continues for 30 days;
(b) our failure to pay principal or premium (including in connection
with a Change of Control) when due;
(c) our failure to perform any other covenant relative to the debt
securities or the indenture for a period of 30 days after the trustee
gives us written notice or we receive written notice by the holders of
at least 25% in aggregate principal amount of the debt securities;
(d) an event of default occurring under any of our instruments under
which there may be issued, or by which there may be secured or
evidenced, any indebtedness for money borrowed 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 (i) indebtedness which is
payable solely out of the property or assets of a partnership, joint
venture or similar entity of which we or any of our subsidiaries or
affiliates 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 us or (ii) indebtedness not exceeding $20,000,000;
<PAGE> 12
(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 aggregating more than
$20,000,000 shall be rendered against us (excluding the amount thereof
covered by insurance) and shall remain undischarged, unvacated and
unstayed for more than 90 days, except while being contested in good
faith by appropriate proceedings; and
(f) certain events of bankruptcy, insolvency or reorganization in
respect of us.
The indenture will provide that if an Event of Default (other than an
Event of Default due to certain events of bankruptcy, insolvency or
reorganization) has occurred and is continuing, either the trustee or the
holders of not less than 25% in principal amount of the debt securities
outstanding under the indenture, or such other amount as may be specified in the
supplement, may then declare the principal of all debt securities under that
indenture and interest accrued thereon to be due and payable immediately.
Except to the extent otherwise stated in the accompanying supplement,
the indenture will contain a provision entitling the trustee, subject to the
duty of the trustee during a default to act with the required standard of care,
to be indemnified by the holders of debt securities before proceeding to
exercise any right or power under the indenture at the request of such holders.
Subject to such provisions in the indenture for the indemnification of the
trustee and certain other limitations, the holders of a majority in principal
amount of the debt securities then outstanding may 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.
Except to the extent otherwise stated in the accompanying supplement,
the indenture will provide that no holder of debt securities may institute any
action against us under the indenture (except actions for payment of overdue
principal or interest) unless:
- such holder previously has given the trustee written notice of the
default and continuance thereof;
- the holders of not less than 25% in principal amount of the debt
securities then outstanding have requested the trustee to institute
such action and offered the trustee reasonable indemnity;
- the trustee has not instituted such action within 60 days of the
request; and
- the trustee has not received direction inconsistent with such written
request from the holders of a majority in principal amount of the debt
securities then outstanding under the indenture.
DEFEASANCE AND COVENANT DEFEASANCE
DEFEASANCE
Except to the extent otherwise stated in the accompanying supplement,
the indenture will provide that we will be deemed to have paid and will be
discharged from any and all obligations in respect of the debt securities, on
the 123rd day after the deposit referred to below has been made, and the
provisions of the indenture will cease to be applicable with respect to the debt
securities (except for, among other matters, certain obligations to register the
transfer of or exchange of the debt securities, to replace stolen, lost or
mutilated debt securities, to maintain paying agencies and to hold funds for
payment in trust) if (A) we have deposited with the trustee, in trust, money
and/or U.S. Government Obligations (as defined in the indenture) that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the principal of,
premium, if any, and accrued interest on the debt securities, at the time such
payments are due in accordance with the terms of the indenture, (B) we have
delivered to the trustee (i) an opinion of counsel to the effect that debt
security holders will not recognize income, gain or loss for federal income tax
<PAGE> 13
purposes as a result of our exercise of our option under the defeasance
provisions of the indenture 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 upon a ruling of the Internal Revenue Service to the
same effect or a change in applicable federal income tax law or related treasury
regulations after the date of the indenture and (ii) an opinion of counsel to
the effect that the defeasance trust does not constitute an "investment company"
within the meaning of 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, 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 we are a party or by which we are bound and (D) if at such
time the debt securities are listed on a national securities exchange, we have
delivered to the trustee an opinion of counsel to the effect that the debt
securities will not be delisted as a result of such deposit and discharge.
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT
Except to the extent otherwise stated in the accompanying supplement,
the indenture for the debt securities will further provide that the provisions
of the indenture will cease to be applicable with respect to (i) the covenants
described under "Change of Control" and (ii) clause (c) under "Events of
Default" with respect to such covenants and clauses (d) and (e) under "Events of
Default" upon the deposit with the trustee, in trust, of money and/or U.S.
Government Obligations that through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, premium, if any, and accrued interest on the
debt securities, the satisfaction of the conditions described in clauses
(B)(ii), (C) and (D) of the preceding paragraph and our delivery to the trustee
of an opinion of counsel to the effect that, among other things, the holders of
the debt securities will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain covenants and
Events of Default 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 and defeasance had not occurred.
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT
Except to the extent otherwise stated in the accompanying supplement,
the indenture will provide that if we exercise our option to omit compliance
with certain covenants and provisions of the indenture with respect to the debt
securities as described in the immediately preceding paragraph and the debt
securities are declared due and payable because of the occurrence of an Event of
Default that remains applicable, the amount of money and/or U.S. Government
Obligations on deposit with the trustee will be sufficient to pay amounts due on
the debt securities at the time of their stated maturity, but may not be
sufficient to pay amounts due on the debt securities at the time of acceleration
resulting from such Event of Default. In such event, we shall remain liable for
such payments.
MODIFICATIONS TO THE INDENTURE
Except as may otherwise be set forth in the accompanying supplement,
the indenture will contain provisions permitting us and the trustee, with the
consent of the holders of not less than a majority in principal amount of the
debt securities then outstanding, to modify the indenture or the rights of the
debt security holders, except that no such modification may, without the consent
of each debt security holder, (i) extend the final maturity of any of the debt
securities 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 impair or affect the right of any debt security holder to
institute suit for the payment thereof or make any change in the covenant
regarding a Change of Control or (ii) reduce the percentage of debt securities,
the consent of the holders of which is required for any such modification.
<PAGE> 14
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that we and the trustee without the consent of any
debt security holder may amend the indenture and the debt securities for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision thereof, or in any manner which we and the trustee may
determine is not inconsistent with the debt securities and will not adversely
affect the interest of any debt security holder.
BOOK-ENTRY, DELIVERY AND FORM
Except as may otherwise be set forth in the accompanying supplement,
the indenture will provide that the debt securities will initially be issued in
the form of one or more registered notes in global form (the "Global Notes").
Each Global Note will be deposited on the date of the closing of the sale of the
debt securities with, or on behalf of, The Depository Trust Company ("DTC"), as
depositary, and registered in the name of Cede & Co., as DTC's nominee.
DTC is a limited-purpose trust company created to hold securities for
its participants (the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of the Participants. The Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Participant,
either directly or indirectly (collectively, the "Indirect Participants").
Persons who are not Participants may beneficially own securities held by or on
behalf of DTC only through the Participants or the Indirect Participants. The
ownership interest and transfer of ownership interest of each actual purchase of
each security held by or on behalf of DTC are recorded on the records of the
Participants and Indirect Participants.
We expect that pursuant to procedures established by DTC, (i) upon
deposit of the Global Notes, DTC will credit the accounts of Participants
designated by the underwriters with portions of the principal amount of the
Global Notes and (ii) ownership of such interests in the Global Notes will be
shown on, and the transfer of ownership thereof will be effected only through,
records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Notes).
Investors in the Global Notes may hold their interests therein directly
through DTC if they are Participants in such system, or indirectly through
organizations which are Participants in such system. All interests in a Global
Note may be subject to the procedures and requirements of DTC. The laws of some
states require that certain persons take physical delivery in certificated form
of securities that they own. Consequently, the ability to transfer beneficial
interests in a Global Note to such persons will be limited to that extent.
Because DTC can act only on behalf of Participants, which in turn act on behalf
of Indirect Participants and certain banks, the ability of a person having
beneficial interests in a Global Note to pledge such interest to persons that do
not participate in the DTC system, or otherwise take actions in respect of such
interest, may be affected by the lack of a physical certificate evidencing such
interests. For certain other restrictions on the transferability of the debt
securities, see "--Exchange of Book-Entry Debt Securities for Certificated Debt
Securities" below.
Except as described below, owners of interests in the Global Notes will
not have debt securities registered in their name, will not receive physical
delivery of debt securities in certificated form and will not be considered the
registered owners of holders thereof under the indenture for any purpose.
Payments in respect of the Global Notes registered in the name of DTC
or its nominee will be payable by the trustee to DTC in its capacity as the
registered holder under the indenture. Under the terms of the indenture, the
trustee will treat the persons in whose names the debt securities, including the
Global Notes, are registered as the owners thereof for the purpose of receiving
such payments and for any and all purposes whatsoever. Consequently, neither the
trustee nor any agent thereof has or will have any responsibility or liability
for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in the Global Note or for
<PAGE> 15
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership interests
in the Global Note or (ii) any other matter relating to the actions and
practices of DTC or any of its Participants or Indirect Participants. DTC's
current practice, upon receipt of any payment in respect of securities such as
the debt securities, is to credit the accounts of the relevant Participants with
the payment on the payment date, in amounts proportionate to their respective
holdings in principal amount of beneficial interests in the relevant security as
shown on the records of DTC unless DTC has reason to believe it will not receive
payment on such payment date. Payments by the Participants and the Indirect
Participants to the beneficial owners of Notes will be governed by standing
instructions and customary practices and will be the responsibility of the
Participants or the Indirect Participants and will not be the responsibility of
DTC, the trustee or us. Neither we nor the trustee will be liable for any delay
by DTC or any of its Participants in identifying the beneficial owners of the
debt securities, and we and the trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
Except as may otherwise be set forth in the accompanying supplement,
DTC will take any action permitted to be taken by a holder of the debt
securities only at the direction of one or more Participants to whose account
with DTC interests in the Global Notes are credited and only in respect of such
portion of the Notes as to which such Participant or Participants has or have
given such direction. However, if there is an Event of Default, DTC reserves the
right to exchange the Global Notes for debt securities in certificated form and
to distribute such debt securities to its Participants.
The information in this section concerning DTC and its book-entry
system has been obtained from sources that we believe to be reliable, but we
have not independently determined the accuracy thereof. We will not have any
responsibility for the performance by DTC or its Participants of their
respective obligations under the rules and procedures governing their
operations.
EXCHANGE OF BOOK ENTRY DEBT SECURITIES FOR CERTIFICATED DEBT SECURITIES
Except as may otherwise be set forth in the accompanying supplement, a
Global Note is exchangeable for debt securities in registered certificated form
if (i) DTC notifies us that it is unwilling or unable to continue as clearing
agency for the Global Note or has ceased to be a clearing agency registered
under the Exchange Act and we thereupon fail to appoint a successor clearing
agency within 90 days, (ii) we in our sole discretion elect to cause the
issuance of definitive certificated debt securities or (iii) there has occurred
and is continuing an Event of Default or any event which after notice or lapse
of time or both would be an Event of Default under the indenture. In addition,
beneficial interests in a Global Note may be exchanged for certificated debt
securities upon request but only upon at least 20 days, prior written notice
given to the trustee by or on behalf of DTC in accordance with customary
procedures. In all cases certificated debt securities delivered in exchange for
any Global Note or beneficial interest therein will be registered in the names,
and issued in denominations of $100,000 and integral multiples of $1,000 in
excess thereof, requested by or on behalf of the clearing agency (in accordance
with its customary procedures).
CONCERNING THE TRUSTEE
Unless otherwise stated in the supplement, the trustee under the first
indenture under which debt securities will be issued will be Norwest Bank
Minnesota, National Association, and, unless stated in the applicable
supplement, (i) it or any other trustee may also be the trustee under any other
indenture for debt securities and (ii) any trustee or its affiliates may lend
money to us, including under our principal credit facility, and may from time to
time have lender or other business arrangements with us. The indenture will
contain certain limitations on the rights of the trustee, should it or its
affiliates then be our creditors, to obtain payment of claims in certain cases
or to realize on certain property received in respect of any such claim as
security or otherwise. The trustee and its affiliates will be permitted to
engage in other transactions; however, if they acquire any conflicting interest,
the conflict must be eliminated or the trustee must resign.
<PAGE> 16
GOVERNING LAW
Unless otherwise specified in the accompanying supplement, the
indenture and the debt securities will be governed by New York law.
PLAN OF DISTRIBUTION
We may offer and sell the debt securities (i) through agents, (ii)
through underwriters, (iii) through dealers, (iv) directly to purchasers
(through a specific bidding or auction process or otherwise), or (v) through a
combination of any such methods of sale. The distribution of the debt securities
may be effected from time to time in one or more transactions at a fixed price
or prices, which may be changed, or at market prices prevailing at the time of
sale, at prices relating to such prevailing market prices or at negotiated
prices.
Offers to purchase the debt securities may be solicited by agents
designated by us from time to time. Any such agent involved in the offer or sale
of the debt securities will be named, and any commissions payable by us to such
agent will be set forth, in the supplement. Unless otherwise indicated in the
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment. Any such agent may be deemed to be an underwriter, as that
term is defined in the Securities Act, of the debt securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of the debt
securities, we will execute an underwriting agreement with such underwriter or
underwriters at the time an agreement for such sale is reached. The names of the
specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including compensation of the
underwriters and dealers, which may be in the form of discounts, concessions or
commissions, if any, will be set forth in the supplement, which will be used by
the underwriters to make resales of the debt securities.
If a dealer is utilized in the sale of the debt securities, we or an
underwriter will sell such debt securities to the dealer, as principal. The
dealer may then resell such debt securities to the public at varying prices to
be determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the supplement relating
thereto.
Offers to purchase the debt securities may be solicited directly by us
and sales thereof may be made by us directly to institutional investors or
others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the supplement relating
thereto.
We may enter into agreements with agents, underwriters and dealers
under which we may agree to indemnify then against certain liabilities,
including liabilities under the Securities Act, or to contribution by us to
payments they may be required to make in respect thereof. The terms and
conditions of such indemnification or contribution will be described in the
applicable supplement. Certain of the agents, underwriters or dealers, or their
affiliates may be customers of, engage in transactions with or perform services
for us in the ordinary course of business.
LEGAL MATTERS
Gibson, Dunn & Crutcher LLP of Denver, Colorado will issue an opinion
to us relating to the legality of the debt securities. If legal matters in
connection with offerings made by this prospectus are passed on by counsel for
the underwriters of an offering of the debt securities, that counsel will be
named in the prospectus supplement relating to that offering.
<PAGE> 17
EXPERTS
Our consolidated financial statements as of December 31, 1997 and for
each of the three years in the three-year period ended December 31, 1997, have
been incorporated by reference in this prospectus and in the registration
statement, of which this prospectus forms a part, in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We estimate that we will pay the following expenses in connection with
the offering described in this registration statement:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee................ $139,000
Printing and engraving expenses*................................... 20,000
Legal fees and expenses*........................................... 75,000
Accounting fees and expenses*...................................... 20,000
Rating agency fees*................................................ 215,000
Trustee fees and expenses*......................................... 5,000
--------
$474,000
========
</TABLE>
- -----------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards to
those set forth above, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsection (a) and (b) of Section 145 or in
the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation may purchase and maintain insurance on behalf
of a director or officer of the corporation against any liability asserted
against such officer or director and incurred by him or her in any such capacity
or arising out of his or her status as such,
II-1
<PAGE> 19
whether or not the corporation would have the power to indemnify him or her
against such liabilities under Section 145.
As authorized by Section 145 of the General Corporation Law of the
State of Delaware, each director and officer of NRG may be indemnified by NRG
against expenses (including attorney's fees, judgments, fines and amounts paid
in settlement) actually and reasonably incurred in connection with the defense
or settlement of any threatened, pending or completed legal proceedings in which
he is involved by reason of the fact that he is or was a director or officer of
NRG if he acted in good faith and in a manner that he reasonably believed to be
in or not opposed to the best interest of NRG and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe that his conduct
was unlawful. However, if the legal proceeding is by or in the right of NRG, the
director or officer may not be indemnified in respect of any claim, issue or
matter as to which he shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to NRG unless a court determines
otherwise.
In addition, Article VI of NRG's By-Laws provides that NRG shall
indemnify and hold harmless, to the fullest extent permitted by applicable law,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding) by reason of the fact that he or
she, or a person for whom he or she is the legal representative, is or was a
director, officer, employee or agent of NRG or is or was serving at the request
of NRG as a director, officer, employee or agent of another company or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. NRG shall be required
to indemnify a person in connection with a Proceeding initiated by such person
only if the Proceeding was authorized by the Board of Directors of NRG.
II-2
<PAGE> 20
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
1.1* Form of Underwriting Agreement
4.1 Proposed Form of Debt Security (included as Exhibit A
of Exhibit 4.2)
4.2 Form of Indenture
5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the
legality of the securities registered hereby
12.1 Computation of Ratios of Earnings to Fixed Charges
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (contained in, and incorporated by
reference to page II-4 of this registration statement)
25.1* Form T-1 Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939
- ----------
* To be filed by amendment or as an exhibit to a document to be incorporated
by reference herein in connection with the offering of the debt
securities.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act;
(ii) To reflect in the prospectus any facts of events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act if, in the aggregate, the changes in volume and price present no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, the paragraphs (a) (1)(i) and (a) (1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
II-3
<PAGE> 21
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at the time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering
(b) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act of 1939 in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act
of 1939.
II-4
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on this 15th day of
March, 1999.
NRG ENERGY, INC.
By: /s/ David H. Peterson
------------------------
David H. Peterson
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints David
H. Peterson and Leonard A. Bluhm and each of them, as such person's true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution for such person and in such person's name, place and stead, in
any and all capacities, to sign and to file with the Securities and Exchange
Commission, any and all amendments and post-effective amendments to this
registration statement, with exhibits thereto and other documents in connection
therewith, granting unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
such person might or could do in person, hereby ratifying and confirming all
that each said attorney-in-fact and agent, or any substitute therefor, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ David H. Peterson Chairman of the Board,
- ---------------------------------------------------------- President and Chief March 15, 1999
David H. Peterson Executive Officer
(Principal Executive
Officer)
/s/ Leonard A. Bluhm Executive Vice President, and
- ---------------------------------------------------------- Chief Financial Officer March 15, 1999
Leonard A. Bluhm (Principal Financial
Officer)
/s/ David E. Ripka Controller (Principal
- ---------------------------------------------------------- Accounting Officer) March 15, 1999
David E. Ripka
</TABLE>
II-5
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Gary R. Johnson
- ---------------------------------------------------------- Director March 15, 1999
Gary R. Johnson
/s/ Cynthia L. Lesher
- ---------------------------------------------------------- Director March 15, 1999
Cynthia L. Lesher
/s/ Edward J. McIntyre
- --------------------------------------------------------- Director March 15, 1999
Edward J. McIntyre
/s/ John A. Noer
- ---------------------------------------------------------- Director March 15, 1999
John A. Noer
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.2
NRG ENERGY, INC.
and
[NAME OF TRUSTEE],
as Trustee
INDENTURE
Dated as of [DATE]
[$ ]
[CLASS OF DEBT SECURITIES]
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.1 Certain Terms Defined......................................................................1
ARTICLE II ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES.................................................6
SECTION 2.1 Authentication and Delivery of Securities..................................................6
SECTION 2.2 Execution of Securities....................................................................7
SECTION 2.3 Certificate of Authentication..............................................................7
SECTION 2.4 Form, Denomination and Date of Securities; Payments of Interest............................7
SECTION 2.5 Global Securities..........................................................................9
SECTION 2.6 Registration, Registration of Transfer and Exchange.......................................10
SECTION 2.7 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.................................11
SECTION 2.8 Cancelation of Securities: Destruction Thereof...........................................12
SECTION 2.9 Temporary Securities......................................................................12
SECTION 2.10 Computation of Interest..................................................................13
ARTICLE III COVENANTS OF THE ISSUER AND THE TRUSTEE.............................................................13
SECTION 3.1 Payment of Principal and Interest.........................................................13
SECTION 3.2 Offices for Payments, etc.................................................................13
SECTION 3.3 Appointment to Fill Vacancy in Office of Trustee..........................................13
SECTION 3.4 Paying Agents.............................................................................14
SECTION 3.5 Certificate to Trustee....................................................................14
SECTION 3.6 Securityholder's Lists....................................................................14
SECTION 3.7 Reports by the Issuer.....................................................................15
SECTION 3.8 Limitation on Liens.......................................................................15
SECTION 3.9 Repurchase of Securities Upon a Change of Control.........................................15
ARTICLE IV REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT......................................17
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.....................17
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.............................19
SECTION 4.3 Application of Proceeds...................................................................21
SECTION 4.4 Suits for Enforcement.....................................................................22
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.......................................22
SECTION 4.6 Limitations of Suits by Securityholders...................................................22
SECTION 4.7 Powers and Remedies Cumulative, Delay or Omission Not Waiver of Default...................23
SECTION 4.8 Control by Securityholders................................................................23
SECTION 4.9 Waiver of Past Defaults...................................................................24
SECTION 4.10 Rights of Holders to Receive Payment.....................................................24
ARTICLE V CONCERNING THE TRUSTEE................................................................................24
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SECTION 5.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default..............24
SECTION 5.2 Certain Rights of the Trustee.............................................................25
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof..........................................................................26
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc..................................26
SECTION 5.5 Moneys Held by Trustee....................................................................27
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior Claim...........................27
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc....................................27
SECTION 5.8 Persons Eligible for Appointment as Trustee...............................................27
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee.................................28
SECTION 5.10 Acceptance of Appointment by Successor Trustee...........................................29
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee...................29
ARTICLE VI CONCERNING THE SECURITYHOLDERS.......................................................................30
SECTION 6.1 Evidence of Action Taken by Securityholders...............................................30
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities Record Date................30
SECTION 6.3 Holders to Be Treated as Owners...........................................................31
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.........................................31
SECTION 6.5 Right of Revocation of Action Taken.......................................................31
ARTICLE VII SUPPLEMENTAL INDENTURES.............................................................................32
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders................................32
SECTION 7.2 Supplemental Indentures With Consent of Securityholders...................................33
SECTION 7.3 Effect of Supplemental Indenture..........................................................34
SECTION 7.4 Documents to Be Given to Trustee..........................................................34
SECTION 7.5 Notation of Securities in Respect of Supplemental Indentures..............................34
ARTICLE VIII CONSOLIDATION, MERGER, SALE OR CONVEYANCE..........................................................34
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or Transfer Assets Except Under Certain
Conditions................................................................................34
SECTION 8.2 Successor Corporation Substituted.........................................................35
SECTION 8.3 Opinion of Counsel to Trustee; Officers' Certificate......................................35
ARTICLE IX SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS............................................36
SECTION 9.1 Satisfaction and Discharge of Indenture...................................................36
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities.......................37
SECTION 9.3 Repayment of Moneys Held by Paying Agent..................................................37
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.................37
SECTION 9.5 Defeasance and Discharge of Indenture.....................................................37
SECTION 9.6 Defeasance of Certain Obligations.........................................................38
</TABLE>
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ARTICLE X MISCELLANEOUS PROVISIONS..............................................................................39
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt from
Individual Liability.....................................................................39
SECTION 10.2 Provisions of the Indenture for the Sole Benefit of Parties and Securityholders..........40
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture......................................40
SECTION 10.4 Notices and Demands on Issuer, Trustee and Securityholders...............................40
SECTION 10.5 Officers' Certificates and Opinions of Counsel, Statements to Be Contained
Therein..................................................................................41
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays..........................................42
SECTION 10.7 New York Law to Govern...................................................................42
SECTION 10.8 Counterparts.............................................................................42
SECTION 10.9 Effect of Headings.......................................................................42
ARTICLE XI REDEMPTION OF SECURITIES.............................................................................42
SECTION 11.1 Right of Optional Redemption Price.......................................................42
SECTION 11.2 Notice of Redemption.....................................................................42
SECTION 11.3 Payment of Securities Called for Redemption..............................................43
</TABLE>
iii
<PAGE> 5
INDENTURE, dated as of [Date] between NRG ENERGY, INC., a Delaware
corporation (herein called the "Issuer"), and [Name of Trustee], 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 [$ ]
aggregate principal amount of its [Class of debt securities] (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(b).
"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 [ ] 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.
<PAGE> 6
"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.
"Change of Control Offer" has the meaning set forth in Section 3.9(b).
"Commission" means the Securities and Exchange Commission, as from time
to 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 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 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.
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<PAGE> 7
"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 [Address].
"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(b).
"Holder," "Holder of Securities," "Securityholder" and other similar
terms mean the registered holder of any Security.
"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.
"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 Moody's 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
3
<PAGE> 8
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.
"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.
"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 cancelation, 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.
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<PAGE> 9
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participation 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.
"Repurchase Date" has the meaning set forth in Section 3.9(b).
"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.
"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.
"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.
5
<PAGE> 10
"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.
"U.S. Depositary" means The Depository Trust Company.
"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.
"1996 Senior Notes" means $125,000,000 aggregate principal amount of
7.625% Senior Notes Due 2006 of the Issuer, issued pursuant to an Indenture
dated as of January 31, 1996, between the Issuer and Norwest Bank Minnesota,
National Association.
"1997 Senior Notes" means $250,000,000 principal amount of 7.5% Senior
Notes due 2007 of the Issuer, issued pursuant to an Indenture dated as of June
1, 1997, between the Issuer and Norwest Bank Minnesota, National Association.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 Authentication and Delivery of Securities.
Upon the execution and delivery of this Indenture, or from time to time
thereafter, Securities in an aggregate principal amount not in excess of
[$ ] (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 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 without any
further action by the Issuer. The Securities shall be direct,
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<PAGE> 11
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.
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 its 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 that 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.
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<PAGE> 12
(b) (i) This Section 2.4(b)(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(b)(1), 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:
"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.
(b) (ii) This Section 2.4(b)(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
8
<PAGE> 13
the U.S. Depositary for credit to their respective accounts (or to such other
accounts as they may direct) at Euroclear System ("Euroclear") or Cedel, S.A.
("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 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.
(c) 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.
(d) 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 aforesaid, such defaulted interest
shall be paid to the Persons in whose names the Securities are registered on
such special record date.
(e) 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
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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 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.
(c) Subject to the provisions of Section 2.4(b) 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.
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, the transfer of Securities as provided in this Article. 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.
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
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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).
(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.
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 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 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 an 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), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee
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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 Cancelation 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 cancelation or, if
surrendered to the Trustee, shall be canceled by it provided all conditions
regarding such cancelation 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 cancelation 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 cancelation.
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
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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
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 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.
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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
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 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 9.1 hereof.
SECTION 3.5 Certificate to Trustee.
Issuer shall furnish to the Trustee on or before March 31 in each year
(beginning with [date]) 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
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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 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.
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.
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, 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 Truster, 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 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 [___]% 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
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[___]% 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;
(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
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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 even 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 of 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:
(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
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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 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 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
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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.
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
Security 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 or 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
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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 or 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:
(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.
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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.
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
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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 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 fight under this
indenture, except in the manner herein
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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 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.
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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. 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 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:
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(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;
(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 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
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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;
(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 or 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,
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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 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
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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 such 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 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 deemed 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 Trustee Indenture Act, after written request
thereafter 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 adjusted 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
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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 aggregated 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 the successor trustee, upon payment of its
charges then unpaid, the Trustee ceasing to act shall, subject to Section 9.4
hereof, pay over 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
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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 fight 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.
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 provided 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.
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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 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 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
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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;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the 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 of 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
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continued 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 3.9 hereof that adversely affects
the rights of 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 percentages 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,
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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 to any matters provided for by
such supplemental indenture or as to any action taken at any such meeting by 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 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
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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, 1996 Senior Notes
or 1997 Senior Notes which are then delivered to the Trustee for cancelation or
are used to reduce or retire Indebtedness ranking pari passu in right of
payment to the Securities.
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 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.
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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 cancelation 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 cancelation 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
liability 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 cancelation, 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 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 or 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.
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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.
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, or the 23rd 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 Trust 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:
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(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 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 and Section 3.9, and Section 4.l(d)
(with respect to Sections 3.8 and 3.9) 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:
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(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 5.6 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 bought 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 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 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
39
<PAGE> 44
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.
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., 1221 Nicollet Mall, Suite 700, Minneapolis, Minnesota 55403,
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
40
<PAGE> 45
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.
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.
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<PAGE> 46
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.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption Price.
The Issuer at its option may, at any time, 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
42
<PAGE> 47
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
semiannual 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.
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.
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<PAGE> 48
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 [date].
NRG ENERGY, INC., as Issuer
By:
------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
[NAME OF TRUSTEE] as Trustee
By:
-----------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
44
<PAGE> 49
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
OTHER THAN THE DEPOSITORY TRUST COMPANY OR CEDE & CO. 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 THE DEPOSITORY TRUST COMPANY 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.]
A-1
<PAGE> 50
[FORM OF FACE OF SECURITY]
CUSIP [ ]
No. [ ]
$[ ]
NRG ENERGY, INC.
[Class of Debt Security]
NRG Energy, Inc. (the "Issuer"), for value received hereby promises to
pay to Cede & Co. 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 [Name of Trustee] (herein called the "Trustee") at [Address] and at
the office or agency of the Issuer for said purpose in the Borough of Manhattan,
The City of New York, on [date] 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
[Date] and [Date] of each year, commencing [date], 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 [date], until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after [Date] or [Date], as the case may be, and before the
following [Date] or [Date], this Security shall bear interest from such [Date]
or [Date]; provided, that if the Issuer shall default in the payment of interest
due on such [Date] or [Date], then this Security shall bear interest from the
next preceding [Date] or [Date] 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 [date].
The interest so payable on any [Date] or [Date] 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 1st day of [Date] or the 1st day of [Date] preceding such [Date] or
[Date], 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-2
<PAGE> 51
This Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory, until the certificate of authentication hereof 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:
By:____________________________________
Title:
ATTEST:
By:_________________________________________
Name:____Title:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
[NAME OF TRUSTEE]
as Trustee
Authorized Signatory
A-3
<PAGE> 52
REVERSE OF SECURITY
NRG ENERGY, INC.
[Class of Debt Security
This Security is one of a duly authorized issue of debt securities of
the Issuer, limited to the aggregate principal amount of $[ ] (except as
otherwise provided in the Indenture mentioned below), issued or to be issued
pursuant to an Indenture dated as of [date] (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 3.9 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 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.
A-4
<PAGE> 53
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 [$________] 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, 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 [ ] 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 [ ]% 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.
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
A-5
<PAGE> 54
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, of 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-6
<PAGE> 55
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 by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934.
A-7
<PAGE> 56
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuer pursuant to
Section 3.9 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the Issuer
pursuant to Section 3.9 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-8
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Gibson, Dunn & Crutcher LLP]
March 15, 1999
C 66241-00026
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, Minnesota 55403
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to NRG Energy, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to the Registration Statement to
which this opinion is an Exhibit (the "Registration Statement"), of $500 million
of the Company's debt securities (the "Debt Securities").
We have examined the originals or certified copies of such corporate
records, certificates of officers of the Company and/or public officials and
such other documents, and have made such other factual and legal investigations,
as we have deemed relevant and necessary as the basis for the opinions set forth
below. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as conformed or photostatic copies.
Based on the foregoing and in reliance thereon, and subject to
completion of the corporate action proposed to be taken by the Company, the
effectiveness of the Registration Statement and the due execution and delivery
of the Indenture(s) pursuant to which the Debt Securities will be issued
(together, the "Indenture") in materially the form filed as an Exhibit to the
Registration Statement, and the qualifications and limitations set forth below,
we are of the opinion that:
<PAGE> 2
NRG Energy, Inc.
March 15, 1999
Page 2
(a) the Debt Securities upon the issuance thereof and
timely payment in full therefor in the manner
described in the Registration Statement and the
Prospectus Supplement describing the terms of the
Debt Securities as issued, will be validly issued,
fully paid and nonassessable; and
(b) the Debt Securities so issued will be binding
obligations of the Company, entitled to the benefits
provided under the Indenture pursuant to which they
are issued.
Our opinions set forth above are subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium and other similar
laws and court decisions of general application (including, without limitation,
statutory or other laws regarding fraudulent or preferential transfers) relating
to, limiting or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of any of the
remedies, covenants or other provisions of the Debt Securities and the Indenture
and the availability of injunctive relief or other equitable remedies and (c)
the application of principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights generally.
In addition, we express no opinion as to: (a) any provisions of the
Debt Securities or the Indenture regarding the remedies available to any person
(1) to take action that is arbitrary, unreasonable or capricious or is not taken
in good faith or in a commercially reasonable manner, whether or not such action
is permitted under the Debt Securities or the Indenture or (2) for violations or
breaches that are determined by a court to be non-material or without
substantially adverse effect upon the ability of the Company to perform its
material obligations under the Debt Securities or the Indenture; or (b) the
provisions of the Debt Securities or the Indenture that may provide for interest
on interest or penalty interest.
The Company is a Delaware corporation. We are not admitted to practice
in Delaware. However, we are generally familiar with the Delaware General
Corporation Law and have made such review thereof as we consider necessary for
the purpose of this opinion. Subject to the foregoing, this opinion is limited
to Delaware, New York and federal law.
This opinion may not be quoted in whole or in part without the prior
written consent of this Firm.
You have informed us that you intend to issue the Debt Securities from
time to time on a delayed or continuous basis, and this opinion is limited to
the laws referred to above as in effect on the date hereof. We understand that
prior to issuing any Debt Securities you will advise us in writing of the terms
thereof, will afford us an opportunity to review the operative documents
pursuant to which such Debt Securities are to be issued (including the
applicable Prospectus Supplement) and will file
<PAGE> 3
NRG Energy, Inc.
March 15, 1999
Page 3
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Debt
Securities.
We hereby consent to the use of our name under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement and to
the filing of this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 12.1
NRG Energy, Inc.
Consolidated ratio of earnings to fixed charges
<TABLE>
<CAPTION>
Earnings: 1998 1997 1996 1995 1994
- --------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Income before taxes 16,078 (1,509) 14,323 40,011 32,010
Less: Undistributed equity in earnings of unconsolidated affiliates (23,391) 6,481 (17,827) (20,074) (18,511)
Add: Cash distribution from project termination - - 15,671 (15,671) -
Add: Fixed charges 51,844 31,920 16,271 7,619 6,827
-------------------------------------------------------
44,531 36,892 28,438 11,885 20,326
========================================================
Fixed Charges:
Interest expense 50,313 30,989 15,430 7,089 6,682
Interest capitalized 172 98 364 250 50
Amortization of debt costs 897 441 255 41 42
Approximation of interest in rental expense 462 392 222 239 53
--------------------------------------------------------
51,844 31,920 16,271 7,619 6,827
========================================================
Ratio of earnings to fixed charges 0.86 1.16 1.75 1.56 2.98
==== ==== ==== ==== ====
Deficiency (in thousands) $ 7,313
========
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-3 of our report
dated March 19, 1998 appearing on page 25 of NRG Energy, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1997. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
March 15, 1999
