Securities and Exchange Commission
Washington, DC 20549
Form 8-K
Current Report
Pursuant to Section 13 to 15(d) of the
Securities Exchange Act 1934
Date of Report March 28, 1994
(Date of earliest event reported)
California Energy Company, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-9874 94-2213782
(State of other (Commission File (IRS Employer
jurisdiction of Number) Identification No)
incorporation)
10831 Old Mill Road Omaha, Nebraska 68154
(Address of principal executive offices) Zip Code
Registrant's Telephone Number, including area code: (402)330-8900
N/A
(Former name or former address, if changed since last report)
ITEM 5. Other Events
On March 28, 1994 the Registrant announced the closing of
its offering of Senior Discount Notes on March 24, 1994. The
Senior Discount Notes, which accrete to an aggregate principal
amount of $529,640,000 at maturity, provide gross proceeds to the
Company of $390,000,017, are redeemable after five years at the
option of the Registrant for a premium declining to par in 2002,
bear an interest rate of 10 1/4% and mature on January 15, 2004.
A copy of the press release (which in no way constitutes an offer
to sell or a solicitation of an offer to buy the Senior Discount
Notes, nor shall there be any sale of these securities in any
State in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws
of any such State) issued by the Registrant and the Indenture
(including a form of Senior Discount Note) dated as of March 24,
1994, setting forth the terms of the Senior Discount Notes are
set forth as Exhibits 1 and 2 hereto and are incorporated herein
by reference. The foregoing description of the Senior Discount
Notes does not purport to be complete and is qualified in its
entirety by reference to Exhibit 2.
ITEM 7. Financial Statements and Exhibits
Exhibit 1 - Press Release dated March 28, 1994.
Exhibit 2 - Indenture dated as of March 24, 1994 between
the Registrant and IBJ Schroder Bank and Trust
Company.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
California Energy Company, Inc.
By: /s/ Steven A. McArthur
Steven A. McArthur
Senior Vice President
Dated: March 28, 1994
FOR IMMEDIATE RELEASE
David L. Sokol,
President and Chief Executive Officer (402) 330-8900
John G. Sylvia,
Vice President and Chief Financial Officer (402) 330-8900
David W. Cox,
Vice President (402) 330-8900
CALIFORNIA ENERGY ANNOUNCES CLOSING OF
10 1/4% SENIOR DISCOUNT NOTES
OMAHA, NEBRASKA, March 28, 1994 -- California Energy
Company, Inc. (NYSE, PSE and LSE symbol: CE) announced today the
closing of its offering of Senior Discount Notes on March 24,
1994. The Senior Discount Notes, which accrete to an aggregate
principal amount of $529,640,000 at maturity, provide gross
proceeds to the Company of $390,000,017, are redeemable after
five years at the option of the Company for a premium declining
to par in 2002, bear an interest rate of 10 1/4% and mature on
January 15, 2004.
The Company intends to use the net proceeds from the Note
offering (i) to fund equity investments in, and the construction
costs of, geothermal power projects presently planned in the
Philippines and Indonesia, (ii) to fund equity investments in,
and loans to, other potential international and domestic private
power projects and related facilities, (iii) for corporate or
project acquisitions permitted under the proposed Indenture and
(iv) for other general corporate purposes. The Company would
intend that, as project loans are repaid, the Company may use the
proceeds again for any of such uses.
The Company offered the Senior Discount Notes through an
underwriting group managed by Lehman Brothers Inc., Salomon
Brothers Inc., Donaldson, Lufkin & Jenrette Securities
Corporation and Bear, Stearns & Co., Inc.
This press release shall not constitute an offer to sell, or
the solicitation of an offer to buy, nor shall there be any sale
of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
California Energy Company is an international developer,
owner and operator of geothermal and other environmentally
responsible power generation facilities.
CALIFORNIA ENERGY COMPANY, INC.
TO
Indenture
Dated as of March 24, 1994
$529,640,000
10-1/4% Senior Discount Notes due 2004
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . .608, 610
311 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c). . . . . . . . . . . . . . . . . . . . . . .Not Applicable
312 (a). . . . . . . . . . . . . . . . . . . . . . . . . .701, 702
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
313 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
314 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . .101, 704
(b) . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f). . . . . . . . . . . . . . . . . . . . . . .Not Applicable
315 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316 (a). . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .1003
318 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
(b). . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
___________________
Note: This Cross-Reference Table shall not, for any pur-
pose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 103. Form of Documents Delivered
to Trustee . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . .44
SECTION 105. Notices, Etc., to Trustee
and Company. . . . . . . . . . . . . . . . . . . . . . .47
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . .48
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . .48
SECTION 108. Effect of Headings and
Table of Contents. . . . . . . . . . . . . . . . . . . .48
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . .49
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . .49
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . .49
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . . .50
SECTION 115. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . .51
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 202. Form of Face of Security. . . . . . . . . . . . . . . . . . . .51
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . .54
SECTION 204. Form of Trustee's Certificate
of Authentication. . . . . . . . . . . . . . . . . . . .61
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 303. Execution, Authentication,
Delivery and Dating. . . . . . . . . . . . . . . . . . .63
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . .64
SECTION 305. Registration, Registration
of Transfer and Exchange . . . . . . . . . . . . . . . .64
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities. . . . . . . . . . . . . . . . . .66
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . .67
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . .68
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . .69
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . .69
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . .69
SECTION 312. Global Securities . . . . . . . . . . . . . . . . . . . . . . .70
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge
of Indenture . . . . . . . . . . . . . . . . . . . . . .72
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . .73
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . .76
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . .77
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . .78
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . .80
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . .80
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . .81
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . .82
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . .82
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . .82
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . .83
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . .83
SECTION 513. Waiver Of Past Defaults . . . . . . . . . . . . . . . . . . . .83
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . .84
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . .84
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . .85
SECTION 602. Notice of Defaults; Notice of
Acceleration . . . . . . . . . . . . . . . . . . . . . .86
SECTION 603. Certain Rights of Trustee.. . . . . . . . . . . . . . . . . . .87
SECTION 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . .88
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . .89
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . .89
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . .89
SECTION 608. Conflicting Interests . . . . . . . . . . . . . . . . . . . . .90
SECTION 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . . . . . . . . . . . . . .91
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . .91
SECTION 611. Acceptance of Appointment
by Successor . . . . . . . . . . . . . . . . . . . . . .93
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business. . . . . . . . . . . . . . . .94
SECTION 613. Preferential Collection
of Claims Against Company. . . . . . . . . . . . . . . .94
SECTION 614. Appointment of Authenticating
Agent. . . . . . . . . . . . . . . . . . . . . . . . . .94
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders . . . . . . . . . . . . .97
SECTION 702. Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . .97
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . .98
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . .98
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.
Only on Certain Terms. . . . . . . . . . . . . . . . . .98
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . 101
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 101
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . 102
SECTION 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 904. Effect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 905. Conformity with Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . 105
SECTION 906. Reference in Securities to
Supplemental Indentures. . . . . . . . . . . . . . . . 105
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 105
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . 106
SECTION 1003. Money for Security Payments
to be Held in Trust. . . . . . . . . . . . . . . . . . 106
SECTION 1004. Existence. . . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . . . . . 108
SECTION 1006. Payment of Taxes and Other Claims. . . . . . . . . . . . 109
SECTION 1007. Maintenance of Insurance . . . . . . . . . . . . . . . . 109
SECTION 1008. Limitation on Debt . . . . . . . . . . . . . . . . . . . 110
SECTION 1009. Limitation on Subsidiary Debt. . . . . . . . . . . . . . 111
SECTION 1010. Limitation on Restricted Payments. . . . . . . . . . . . 112
SECTION 1011. Limitation on Transactions with Affiliates . . . . . . . 115
SECTION 1012. Limitations on Liens . . . . . . . . . . . . . . . . . . 116
SECTION 1013. Repurchase of Securities Upon
a Change of Control. . . . . . . . . . . . . . . . . . 118
SECTION 1014. Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries . . . . . . . . . . . . . . . . . . . . . 120
SECTION 1015. Limitation on Dispositions . . . . . . . . . . . . . . . 122
SECTION 1016. Limitation on Certain
Sale-Leasebacks. . . . . . . . . . . . . . . . . . . . 127
SECTION 1017. Provision of Financial Information . . . . . . . . . . . 127
SECTION 1018. Limitation on Sale of
Subsidiary Preferred Stock . . . . . . . . . . . . . . 128
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates. . . . . . . . . . . . . . . . 129
SECTION 1020. Waiver of Certain Covenants. . . . . . . . . . . . . . . 130
SECTION 1021. Company to Supply Information
Concerning Original
Issue Discount . . . . . . . . . . . . . . . . . . . . . 130
SECTION 1022. Limitation on Business . . . . . . . . . . . . . . . . . 130
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption. . . . . . . . . . . . . . . . . . . 132
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . 132
SECTION 1103. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . . . . . . . . . . . 132
SECTION 1104. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . 132
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . 133
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . 134
SECTION 1107. Securities Payable on
Redemption Date. . . . . . . . . . . . . . . . . . . . 134
SECTION 1108. Securities Redeemed in Part. . . . . . . . . . . . . . . 135
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance . . . . . . . . . . . . . . . . 135
SECTION 1202. Defeasance and Discharge . . . . . . . . . . . . . . . . 135
SECTION 1203. Covenant Defeasance. . . . . . . . . . . . . . . . . . . 136
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . . 137
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions . . . . . . . . . . . . . . . 140
SECTION 1206. Reinstatement. . . . . . . . . . . . . . . . . . . . . . 141
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
INDENTURE, dated as of March 24, 1994, between Califor-
nia Energy Company, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 10831 Old Mill
Road, Omaha, Nebraska 68154, and IBJ Schroder Bank & Trust
Company, a New York banking corporation, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an
issue of its 10-1/4% Senior Discount Notes due 2004 (the "Secu-
rities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Securities, when
executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
(a) For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(2) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with GAAP (whether or not such is indicated herein);
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or Section, as the case may be, of this
Indenture;
(5) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision;
(6) "or" is not exclusive;
(7) provisions apply to successive events and
transactions; and
(8) each reference herein to a rule or form of
the Commission shall mean such rule or form and any
rule or form successor thereto, in each case as amended
from time to time.
Whenever this Indenture requires that a particular
ratio or amount be calculated with respect to a specified period
after giving effect to certain transactions or events on a pro
forma basis, such calculation shall be made as if the transac-
tions or events occurred on the first day of such period, unless
otherwise specified.
"Accreted Value" means, with respect to each Security
of a minimum denomination, the lesser of (i) $1,000 and (ii) an
amount per $1,000 of principal amount that is equal to the sum of
(i) the issue price of such Security as determined in accordance
with Section 1273 of the Internal Revenue Code or any successor
provision plus (ii) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of
the "stated redemption price at maturity" of such Security within
the meaning of Section 1273(a)(2) of the Internal Revenue Code or
any successor provision, whether denominated as principal or
interest, over the issue price of such Security) that shall
theretofore have accrued pursuant to Section 1272 of the Internal
Revenue Code or any successor provision (without regard to Sec-
tion 1272(a)(7) of the Internal Revenue Code or any successor
provision) from the date of issue of such Security (a) for each
six months or shorter period ending January 15 and July 15 prior
to the date of determination and (b) for the shorter period, if
any, from the end of the immediately preceding six month period,
as the case may be, to the date of determination, minus (iii) all
amounts theretofore paid in respect of such Security, which
amounts are considered as part of the "stated redemption price at
maturity" of such Security within the meaning of Section
1273(a)(2) of the Internal Revenue Code or any successor
provision (whether such amounts were denominated principal or
interest).
"Acquired Debt" means Debt Incurred by a Person prior
to the time (i) such Person becomes a Restricted Subsidiary of
the Company or an Eligible Joint Venture, (ii) such Person merges
with or into a Restricted Subsidiary of the Company or an
Eligible Joint Venture, or (iii) a Restricted Subsidiary of the
Company or an Eligible Joint Venture merges with or into such
Person (in a transaction in which such Person becomes a
Restricted Subsidiary of the Company or an Eligible Joint
Venture), provided that, after giving effect to such transaction,
the Non-Recourse Debt of such Person could have been Incurred
pursuant to clause (iii) of Section 1009(b) and all the other
Debt of such Person could have been Incurred by the Company at
the time of such merger or acquisition pursuant to the provision
described in Section 1008(a), and provided further that such Debt
was not Incurred in connection with, or in contemplation of, such
merger or such Person becoming a Restricted Subsidiary of the
Company or an Eligible Joint Venture.
"Acquisition Debt" means Debt of any Person existing at
the time such Person is merged into the Company or assumed in
connection with the acquisition of Property from any such Person
(other than Property acquired in the ordinary course of
business), including Debt Incurred in connection with, or in
contemplation of, such Person being merged into the Company (but
excluding Debt of such Person that is extinguished, retired or
repaid in connection with such merger or acquisition).
"Adjusted Consolidated Net Income" means for any
period, for any Person (the "Referenced Person") the aggregate
Net Income (or loss) of the Referenced Person and its consoli-
dated Subsidiaries for such period determined in conformity with
GAAP, provided that the following items shall be excluded in
computing Adjusted Consolidated Net Income (without duplication):
(i) the Net Income (or loss) of any other Person (other than a
Subsidiary of the Referenced Person) in which any third Person
has an interest, except to the extent of the amount of dividends
or other distributions actually paid in cash to the Referenced
Person during such period, or after such period and on or before
the date of determination, by such Person in which the interest
is held, which dividends and distributions shall be included in
such computation, (ii) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to the
provision described in clause (c) of Section 1010(a) (and in such
case, except to the extent includable pursuant to clause (i)
above), the Net Income (if positive) of any other Person accrued
prior to the date it becomes a Subsidiary of the Referenced
Person or is merged into or consolidated with the Referenced
Person or any of its Subsidiaries or all or substantially all the
Property of such other Person are acquired by the Referenced
Person or any of its Subsidiaries, (iii) the Net Income (if
positive) of any Subsidiary of the Referenced Person, to the
extent that the declaration or payment of dividends or similar
distributions by the Subsidiary to such Person or to any other
Subsidiary of such Net Income is not at the time permitted by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to the Subsidiary, (iv) any
gains or losses (on an after-tax basis) attributable to Asset
Sales (except, solely for the purposes of calculating the amount
of Restricted Payments that may be made pursuant to the provision
described in clause (c) of Section 1010(a), any gains or losses
of the Company and any of its Restricted Subsidiaries from Asset
Sales of Capital Stock of Unrestricted Subsidiaries), (v) the
cumulative effect of a change in accounting principles and (vi)
any amounts paid or accrued as dividends on Preferred Stock of
any Subsidiary of the Referenced Person that is not held by the
Referenced Person or another Subsidiary thereof. When the
"Referenced Person" is the Company, the foregoing references to
"Subsidiaries" shall be deemed to refer to "Restricted Subsidiar-
ies."
"Affiliate" of any Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For the
purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by"
and "under common control with") when used with respect to any
Person means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securi-
ties, by contract or otherwise. For the purpose of Section 1011,
the term "Affiliate" includes only Kiewit, any entity
beneficially owning 10% or more of the Voting Stock of the Compa-
ny and their respective Affiliates other than the Restricted
Subsidiaries and the Eligible Joint Ventures and the other equity
investors in the Restricted Subsidiaries and the Eligible Joint
Ventures (solely on account of their investments in the
Restricted Subsidiaries and the Eligible Joint Ventures), and for
such purpose such term also includes the Unrestricted Subsid-
iaries.
"Asset Acquisition" means (i) an investment by the
Company, any of its Subsidiaries or any Joint Venture in any
other Person pursuant to which such Person shall become a direct
or indirect Subsidiary of the Company or a Joint Venture or shall
be merged into or consolidated with the Company, any of its
Subsidiaries or any Joint Venture or (ii) an acquisition by the
Company, any of its Subsidiaries or any Joint Venture of the
Property of any Person other than the Company, any of its Subsid-
iaries or any Joint Venture that constitutes substantially all of
an operating unit or business of such Person.
"Asset Disposition" means any sale, transfer, convey-
ance, lease or other disposition (including by way of merger,
consolidation or sale-leaseback) by the Company, any of its
Restricted Subsidiaries or any Eligible Joint Venture to any
Person (other than to the Company, a Restricted Subsidiary of the
Company or an Eligible Joint Venture and other than in the ordi-
nary course of business) of any Property of the Company, any of
its Restricted Subsidiaries or any Eligible Joint Venture other
than any shares of Capital Stock of the Unrestricted
Subsidiaries. Notwithstanding the foregoing to the contrary, the
term "Asset Disposition" shall include the sale, transfer,
conveyance or other disposition of any shares of Capital Stock of
any Unrestricted Subsidiary to the extent that the Company or any
of its Restricted Subsidiaries or Eligible Joint Ventures made an
Investment in such Unrestricted Subsidiary pursuant to clause
(vii) of the definition of "Permitted Payment," and the Company
shall, and shall cause each of its Restricted Subsidiaries and
Eligible Joint Ventures to, apply pursuant to Section 1015 that
portion of the Net Cash Proceeds from the sale, transfer, convey-
ance or other disposition of such Unrestricted Subsidiary that is
equal to the portion of the total Investment in such Unrestricted
Subsidiary that is represented by the Investment that was made
pursuant to clause (vii) of the definition of "Permitted
Payment." For purposes of this definition, any disposition in
connection with directors' qualifying shares or investments by
foreign nationals mandated by applicable law shall not constitute
an Asset Disposition. In addition, the term "Asset Disposition"
shall not include (i) any sale, transfer, conveyance, lease or
other disposition of the Capital Stock or Property of Restricted
Subsidiaries or Eligible Joint Ventures pursuant to the terms of
any power sales agreements or steam sales agreements to which
such Restricted Subsidiaries or such Eligible Joint Ventures are
parties on the Issue Date of the Securities or pursuant to the
terms of any power sales agreements or steam sales agreements, or
other agreements or contracts that are related to the output or
product of, or services rendered by, a Permitted Facility as to
which such Restricted Subsidiary or such Eligible Joint Venture
is the supplying party, to which such Restricted Subsidiaries or
such Eligible Joint Ventures become a party after such date if
the President or Chief Financial Officer of the Company deter-
mines in good faith (evidenced by an Officers' Certificate) that
such provisions are customary (or, in the absence of any industry
custom, reasonably necessary) in order to effect such agreements
and are reasonable in light of comparable transactions in the
applicable jurisdiction, (ii) any sale, transfer, conveyance,
lease or other disposition of Property governed by Section 801,
(iii) any sale, transfer, conveyance, lease or other disposition
of any Cash Equivalents, (iv) any transaction or series of
related transactions consisting of the sale, transfer, convey-
ance, lease or other disposition of Capital Stock or Property
with a fair market value aggregating less than $5 million and (v)
any Permitted Payment or any Restricted Payment that is permitted
to be made pursuant to Section 1010. The term "Asset Disposi-
tion" also shall not include (i) the grant of or realization upon
a Lien permitted under Section 1012 or the exercise of remedies
thereunder, (ii) a sale-leaseback transaction involving substan-
tially all the Property constituting a Permitted Facility pursu-
ant to which a Restricted Subsidiary of the Company or an Eligi-
ble Joint Venture sells the Permitted Facility to a Person in
exchange for the assumption by that Person of the Debt financing
the Permitted Facility and the Restricted Subsidiary or the
Eligible Joint Venture leases the Permitted Facility from such
Person, (iii) dispositions of Capital Stock, contract rights,
development rights and resource data made in connection with the
initial development of Permitted Facilities, or the formation or
capitalization of Restricted Subsidiaries or Eligible Joint Ven-
tures in respect of the initial development of Permitted Facili-
ties, in respect of which only an insubstantial portion of the
prospective Construction Financing that would be required to
commence commercial operation has been funded or (iv) transac-
tions determined in good faith by the Chief Financial Officer, as
evidenced by an Officers' Certificate, made in order to enhance
the repatriation of the Net Cash Proceeds for a Foreign Asset
Disposition or in order to increase the after-tax proceeds
thereof available for immediate distribution to the Company. Any
Asset Disposition that results from the bona fide exercise by any
governmental authority of its claimed or actual power of eminent
domain need not comply with the provisions of clauses (i) and
(ii) of Section 1015(a). Any Asset Disposition that results from
a casualty loss need not comply with the provisions of clause (i)
of Section 1015(a).
"Asset Sale" means the sale or other disposition by the
Company, any of its Subsidiaries or any Joint Venture (other than
to the Company, another Subsidiary of the Company or another
Joint Venture) of (i) all or substantially all of the Capital
Stock of any Subsidiary of the Company or any Joint Venture or
(ii) all or substantially all of the Property that constitutes an
operating unit or business of the Company, any of its Subsidiar-
ies or any Joint Venture.
"Attributable Value" means, as to a Capitalized Lease
Obligation under which any Person is at the time liable and at
any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a
balance sheet of such Person in accordance with GAAP.
"Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 614 hereof to act on behalf of
the Trustee to authenticate Securities.
"Average Life" means, at any date of determination with
respect to any Debt security or Preferred Stock, the quotient
obtained by dividing (i) the sum of the product of (A) the number
of years from such date of determination to the dates of each
successive scheduled principal or involuntary liquidation value
payment of such Debt security or Preferred Stock, respectively,
multiplied by (B) the amount of such principal or involuntary
liquidation value payment by (ii) the sum of all such principal
or involuntary liquidation value payments.
"Board of Directors" means either the Board of
Directors of the Company or any duly authorized committee of such
Board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
(unless the context specifically requires that such resolution be
adopted by a majority of the Disinterested Directors, in which
case by a majority of such directors) and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day that, in the city (or in any
of the cities, if more than one) where amounts are payable in
respect of the Securities, is neither a legal holiday nor a day
on which banking institutions are authorized or required by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) in, or
interests (however designated) in, the equity of such Person that
is outstanding or issued on or after the date of Indenture,
including, without limitation, all Common Stock and Preferred
Stock and partnership and joint venture interests in such Person.
"Capitalized Lease" means, as applied to any Person,
any lease of any Property of which the discounted present value
of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of
such Person, and "Capitalized Lease Obligation" means the rental
obligations, as aforesaid, under such lease.
"Cash Equivalent" means any of the following: (i)
securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time
deposits and certificates of deposit of any commercial bank
organized in the United States having capital and surplus in
excess of $500,000,000 or any commercial bank organized under the
laws of any other country having total assets in excess of
$500,000,000 with a maturity date not more than two years from
the date of acquisition, (iii) repurchase obligations with a term
of not more than 30 days for underlying securities of the types
described in clauses (i) or (v) that were entered into with any
bank meeting the qualifications set forth in clause (ii) or
another financial institution of national reputation, (iv) direct
obligations issued by any state or other jurisdiction of the
United States of America or any other country or any political
subdivision or public instrumentality thereof maturing, or
subject to tender at the option of the holder thereof, within 90
days after the date of acquisition thereof and, at the time of
acquisition, having a rating of A from S&P or A-2 from Moody's
(or, if at any time neither S&P nor Moody's may be rating such
obligations, then from another nationally recognized rating
service acceptable to the Trustee), (v) commercial paper issued
by (a) the parent corporation of any commercial bank organized in
the United States having capital and surplus in excess of
$500,000,000 or any commercial bank organized under the laws of
any other country having total assets in excess of $500,000,000,
and (b) others having one of the two highest ratings obtainable
from either S&P or Moody's (or, if at any time neither S&P nor
Moody's may be rating such obligations, then from another nation-
ally recognized rating service acceptable to the Trustee) and in
each case maturing within one year after the date of acquisition,
(vi) overnight bank deposits and bankers' acceptances at any
commercial bank organized in the United States having capital and
surplus in excess of $500,000,000 or any commercial bank orga-
nized under the laws of any other country having total assets in
excess of $500,000,000, (vii) deposits available for withdrawal
on demand with any commercial bank organized in the United States
having capital and surplus in excess of $500,000,000 or any com-
mercial bank organized under the laws of any other country having
total assets in excess of $500,000,000, (viii) investments in
money market funds substantially all of whose assets comprise
securities of the types described in clauses (i) through (vi) and
(ix), and (ix) auction rate securities or money market preferred
stock having one of the two highest ratings obtainable from
either S&P or Moody's (or, if at any time neither S&P nor Moody's
may be rating such obligations, then from another nationally
recognized rating service acceptable to the Trustee).
"Change of Control" means the occurrence of one or more
of the following events:
(i) for so long as at least $25 million principal
amount of the Company's 5% Convertible Subordinated De-
bentures due July 1, 2000 remain outstanding and are
not defeased, (x) a report is filed on Schedule 13D or
14D-1 (or any successor schedule, form or report)
pursuant to the Exchange Act, disclosing that any
person (for the purposes of this provision only, as the
term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision
to either of the foregoing) has become the beneficial
owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of
the then outstanding shares of the Voting Stock of the
Company and (y) such beneficial ownership is acquired
by means of a tender offer in which cash is the sole
consideration paid and the purchase price for each
share tendered is less than the conversion price then
in effect under the Company's 5% Convertible
Subordinated Debentures due July 1, 2000; provided that
a person shall not be deemed to be the beneficial owner
of, or to own beneficially, any securities tendered
until such tendered securities are accepted for pur-
chase under the tender offer;
(ii) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other
than Kiewit, is or becomes the beneficial owner (as de-
fined in clause (i) above), directly or indirectly, of
more than 35% of the total voting power of the Voting
Stock of the Company (for the purposes of this clause
(ii), any person shall be deemed to beneficially own
any Voting Stock of any corporation (the "specified
corporation") held by any other corporation (the
"parent corporation"), if such person "beneficially
owns" (as so defined), directly or indirectly, more
than 35% of the voting power of the Voting Stock of
such parent corporation) and Kiewit "beneficially owns"
(as so defined), directly or indirectly, in the aggre-
gate a lesser percentage of the voting power of the
Voting Stock of the Company and does not have the right
or ability by voting power, contract or otherwise to
elect or designate for election a majority of the board
of directors of the Company;
(iii) during any one-year period, individuals who
at the beginning of such period constituted the Board
of Directors of the Company (together with any new
directors elected by such Board of Directors or
nominated for election by the shareholders of the
Company by a vote of at least a majority of the
directors of the Company then still in office who were
either directors at the beginning of such period or
whose election or nomination for election was
previously so approved) cease for any reason to consti-
tute a majority of the Board of Directors then in
office, unless a majority of such new directors were
elected or appointed by Kiewit; or
(iv) the Company or its Restricted Subsidiaries
sell, convey, assign, transfer, lease or otherwise dis-
pose of all or substantially all the Property of the
Company and the Restricted Subsidiaries taken as a
whole;
provided that with respect to the foregoing subparagraphs (ii),
(iii) and (iv), a Change of Control shall not be deemed to have
occurred unless and until a Rating Decline has occurred as well.
"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 Capital Stock of any other class of
such Person.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture and thereafter "Company" shall mean such successor
Person.
"Company Refinancing Debt" means Debt issued in ex-
change for, or the proceeds of which are used to refinance
(including to purchase), outstanding Securities or other Debt of
the Company Incurred pursuant to clauses (i), (iv), and (vii) of
Section 1008(b) and Debt Incurred pursuant to Section 1008(a) in
an amount (or, if such new Debt provides for an amount less than
the principal amount thereof to be due and payable upon a decla-
ration of acceleration thereof, with an original issue price) not
to exceed the amount so exchanged or refinanced (plus accrued
interest and all fees, premiums (in excess of the accreted value)
and expenses related to such exchange or refinancing), for which
purpose the amount so exchanged or refinanced shall be deemed to
equal the lesser of (x) the principal amount of the Debt so ex-
changed or refinanced and (y) if the Debt being exchanged or
refinanced was issued with an original issue discount, the
accreted value thereof (as determined in accordance with GAAP) at
the time of such exchange or refinancing, provided that (A) such
Debt shall be subordinated in right of payment to the Securities
at least to the same extent, if any, as the Debt so exchanged or
refinanced is subordinated to the Securities, (B) such Debt shall
be Non-Recourse if the Debt so exchanged or refinanced is Non-
Recourse, (C) the Average Life of the new Debt shall be equal to
or greater than the Average Life of the Debt to be exchanged or
refinanced and (D) the final Stated Maturity of the new Debt
shall not be sooner than the earlier of the final Stated Maturity
of the Debt to be exchanged or refinanced or six months after the
final Stated Maturity of the Securities, provided that if such
new Debt refinances the Securities in part only, the final Stated
Maturity of such new Debt must be at least six months after the
final Stated Maturity of the Securities.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its
Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated EBITDA" of any Person for any period
means the Adjusted Consolidated Net Income of such Person, plus,
only to the extent deducted in computing Adjusted Consolidated
Net Income and without duplication, (i) income taxes, excluding
income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or Asset Sales,
all determined on a consolidated basis for such Person and its
consolidated Subsidiaries in accordance with GAAP, (ii)
Consolidated Fixed Charges, (iii) depreciation and amortization
expense, all determined on a consolidated basis for such Person
and its consolidated Subsidiaries in accordance with GAAP and
(iv) all other non-cash items reducing Adjusted Consolidated Net
Income for such period, all determined on a consolidated basis
for such Person and its consolidated Subsidiaries in accordance
with GAAP, and less all non-cash items increasing Adjusted
Consolidated Net Income during such period, provided that depre-
ciation and amortization expense of any Subsidiary of such Person
and any other non-cash item of any Subsidiary of such Person that
reduces Adjusted Consolidated Net Income shall be excluded
(without duplication) in computing Consolidated EBITDA, except to
the extent that the positive cash flow associated with such
depreciation and amortization expense and other non-cash items is
actually distributed in cash to such Person during such period,
provided further that as applied to the Company, cash in respect
of depreciation and amortization and other non-cash items of Re-
stricted Subsidiaries and Eligible Joint Ventures may be deemed
to have been distributed or paid to the Company to the extent
that such cash (I) is or was under the exclusive dominion and
control of such Restricted Subsidiary or such Eligible Joint
Venture and is free and clear of the Lien of any other Person,
(II) is immediately available for distribution and (III) could be
or could have been repatriated to the United States by means that
are both lawful and commercially reasonable, provided that the
amount of the cash deemed by this sentence to have been
distributed or paid shall be reduced by the amount of tax that
would have been payable with respect to the repatriation thereof,
provided further that any cash that enables the recognition of
depreciation and amortization and other non-cash items pursuant
to this sentence may not be used to enable the recognition of
depreciation and amortization and other non-cash items with
respect to any prior or subsequent period, regardless of whether
such cash is distributed to the Company, and provided further
that the recognition of any depreciation and amortization and
other non-cash items as a result of this sentence shall be deter-
mined in good faith by the Chief Financial Officer, as evidenced
by an Officers' Certificate that shall set forth in reasonable
detail the relevant facts and assumptions supporting such
recognition. When the "Person" referred to above is the Company,
the foregoing references to "Subsidiaries" shall be deemed to
refer to "Restricted Subsidiaries."
"Consolidated Fixed Charges" of any Person means, for
any period, the aggregate of (i) Consolidated Interest Expense,
(ii) the interest component of Capitalized Leases, determined on
a consolidated basis for such Person and its consolidated
Subsidiaries in accordance with GAAP, excluding any interest
component of Capitalized Leases in respect of that portion of a
Capitalized Lease Obligation of a Subsidiary that is Non-Recourse
to such Person, and (iii) cash and non-cash dividends due
(whether or not declared) on the Preferred Stock of any
Subsidiary of such Person held by any Person other than such
Person and any Redeemable Stock of such Person or any Subsidiary
of such Person. When the "Person" referred to above is the
Company, the foregoing references to "Subsidiaries" shall be
deemed to refer to "Restricted Subsidiaries."
"Consolidated Interest Expense" of any Person means,
for any period, the aggregate interest expense in respect of Debt
(including amortization of original issue discount and non-cash
interest payments or accruals) of such Person and its
consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, including all commissions, discounts, other
fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs associated with
Interest Rate Protection Agreements and Currency Protection
Agreements and any amounts paid during such period in respect of
such interest expense, commissions, discounts, other fees and
charges that have been capitalized, provided that Consolidated
Interest Expense of the Company shall not include any interest
expense (including all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing and net costs associated with Interest Rate
Protection Agreements or Currency Protection Agreements) in
respect of that portion of any Debt that is Non-Recourse, and pr-
ovided further that Consolidated Interest Expense of the Company
in respect of a Guarantee by the Company of Debt of another
Person shall be equal to the commissions, discounts, other fees
and charges that would be due with respect to a hypothetical
letter of credit issued under a bank credit agreement that can be
drawn by the beneficiary thereof in the amount of the Debt so
guaranteed if (i) the Company is not actually making directly or
indirectly interest payments on such Debt and (ii) GAAP does not
require the Company on an unconsolidated basis to record such
Debt as a liability of the Company. When the "Person" referred
to above is the Company, the foregoing references to "Subsid-
iaries" shall be deemed to refer to "Restricted Subsidiaries."
"Construction Financing" means the debt and/or equity
financing provided (over and above the owners' equity investment)
to permit the acquisition, development, design, engineering,
procurement, construction and equipping of a Permitted Facility
and to enable it to commence commercial operations, provided that
Construction Financing may remain outstanding after the commence-
ment of commercial operations of a Permitted Facility, without
any increase in the amount of such financing, and such
Construction Financing shall not cease to be Construction
Financing.
"Corporate Trust Office" means the principal office of
the Trustee at which at any particular time its corporate trust
business shall be administered, which address as of the date of
this Indenture is located at One State Street, New York, New York
10004.
"Currency Protection Agreement" means, with respect to
any Person, any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement intended to
protect such Person against fluctuations in currency values to or
under which such Person is a party or a beneficiary on the date
of this Indenture or becomes a party or a beneficiary thereafter.
"Debt" means, with respect to any Person, at any date
of determination (without duplication), (i) all indebtedness of
such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person in respect of
letters of credit, bankers' acceptances, surety, bid, operating
and performance bonds, performance guarantees or other similar
instruments or obligations (or reimbursement obligations with re-
spect thereto) (except, in each case, to the extent incurred in
the ordinary course of business), (iv) all obligations of such
Person to pay the deferred purchase price of property or servic-
es, except Trade Payables, (v) the Attributable Value of all
obligations of such Person as lessee under Capitalized Leases,
(vi) all Debt of others secured by a Lien on any Property of such
Person, whether or not such Debt is assumed by such Person,
provided that, for purposes of determining the amount of any Debt
of the type described in this clause, if recourse with respect to
such Debt is limited to such Property, the amount of such Debt
shall be limited to the lesser of the fair market value of such
Property or the amount of such Debt, (vii) all Debt of others
Guaranteed by such Person to the extent such Debt is Guaranteed
by such Person, (viii) all Redeemable Stock valued at the greater
of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and (ix) to the extent not otherwise
included in this definition, all net obligations of such Person
under Currency Protection Agreements and Interest Rate Protection
Agreements.
For purposes of determining any particular amount of
Debt that is or would be outstanding, Guarantees of, or obliga-
tions with respect to letters of credit or similar instruments
supporting (to the extent the foregoing constitutes Debt), Debt
otherwise included in the determination of such particular amount
shall not be included. For purposes of determining compliance
with this Indenture, in the event that an item of Debt meets the
criteria of more than one of the types of Debt described in the
above clauses, the Company, in its sole discretion, shall clas-
sify such item of Debt and only be required to include the amount
and type of such Debt in one of such clauses.
"Default" means any event that is, or after notice or
passage of time, or both, would be, an Event of Default.
"Default Amount" means, prior to January 15, 1997, the
Accreted Value, and from and including January 15, 1997, the
principal amount plus accrued interest.
"Depositary" means the Person designated as Depositary
by the Company pursuant to Section 312 until a successor
depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder.
For purposes of this Indenture, unless otherwise specified
pursuant to Section 312, any such Depositary shall, at the time
of its designation and at all times during which it serves as
Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
"Disinterested Director" means, with respect to any
proposed transaction between the Company, a Restricted Subsidiary
of the Company or an Eligible Joint Venture, as applicable, and
an Affiliate thereof, a member of the Board of Directors who
would not be a party to, or have a financial interest in, such
transaction and is not an officer, director or employee of, and
does not have a financial interest in, such Affiliate. For pur-
poses of this definition, no person would be deemed not to be a
Disinterested Director solely because such person holds Capital
Stock of the Company.
"Eligible Joint Venture" means a Joint Venture (other
than a Subsidiary) (i) that is or shall be formed with respect to
the construction, development, acquisition, servicing, ownership,
operation or management of one or more Permitted Facilities and
(ii) in which the Company and Kiewit together, directly or indi-
rectly, own at least 50% of the Capital Stock therein (of which
the Company must own at least half (in any event not less than
25% of the total outstanding Capital Stock)) and (iii) in respect
of which the Company alone or in combination with Kiewit,
directly or indirectly, (a) controls, by voting power, board or
management committee membership, or through the provisions of any
applicable partnership, shareholder or other similar agreement or
under an operating, maintenance or management agreement or
otherwise, the management and operation of the Joint Venture or
any Permitted Facilities of the Joint Venture or (b) otherwise
has significant influence over the management or operation of the
Joint Venture or any Permitted Facility of the Joint Venture in
all material respects (significant influence includes, without
limitation, the right to control or veto any material act or
decision) in connection with such management or operation. Any
Joint Venture that is an Eligible Joint Venture pursuant to this
definition because of the ownership of Capital Stock therein by
Kiewit shall cease to be an Eligible Joint Venture if (x) Kiewit
disposes of any securities issued by the Company and, as a result
of such disposition, Kiewit becomes the beneficial owner (as such
term is defined under Rule 13d-3 or any successor rule or regula-
tion promulgated under the Exchange Act) of less than 25% of the
outstanding shares of Voting Stock of the Company or (y) (I) as a
result of any action other than a disposition of securities by
Kiewit, Kiewit becomes the beneficial owner of less than 25% of
the outstanding shares of Voting Stock of the Company and (II)
thereafter Kiewit disposes of any securities issued by the
Company as a result of which the beneficial ownership by Kiewit
of the outstanding Voting Stock of the Company is further re-
duced, provided that thereafter such Joint Venture may become an
Eligible Joint Venture if Kiewit becomes the beneficial owner of
at least 25% of the outstanding shares of Voting Stock of the
Company and the other conditions set forth in this definition are
fulfilled.
"Exchange Act" refers to the Securities Exchange Act of
1934 and any statute successor thereto, in each case as amended
from time to time.
"Fixed Charge Ratio" means the ratio, on a pro forma
basis, of (i) the aggregate amount of Consolidated EBITDA of any
Person for the Reference Period immediately prior to the date of
the transaction giving rise to the need to calculate the Fixed
Charge Ratio (the "Transaction Date") to (ii) the aggregate
Consolidated Fixed Charges of such Person during such Reference
Period, provided that for purposes of such computation, in calcu-
lating Consolidated EBITDA and Consolidated Fixed Charges, (1)
the Incurrence of the Debt giving rise to the need to calculate
the Fixed Charge Ratio and the application of the proceeds there-
from (including the retirement or defeasance of Debt) shall be
assumed to have occurred on the first day of the Reference Peri-
od, (2) Asset Sales and Asset Acquisitions that occur during the
Reference Period or subsequent to the Reference Period and prior
to the Transaction Date (but including any Asset Acquisition to
be made with the Debt Incurred pursuant to (1) above) and any
related retirement of Debt pursuant to an Offer to Purchase (in
the amount of the Excess Proceeds with respect to which such
Offer to Purchase has been made or would be made on the Transac-
tion Date if the purchase of Securities pursuant to such Offer to
Purchase has not occurred on or before the Transaction Date)
shall be assumed to have occurred on the first day of the Refer-
ence Period, (3) the Incurrence of any Debt during the Reference
Period or subsequent to the Reference Period and prior to the
Transaction Date and the application of the proceeds therefrom
(including the retirement or defeasance of other Debt) shall be
assumed to have occurred on the first day of such Reference
Period, (4) Consolidated Interest Expense attributable to any
Debt (whether existing or being Incurred) computed on a pro forma
basis and bearing a floating interest rate shall be computed as
if the rate in effect on the date of computation had been the
applicable rate for the entire period unless the obligor on such
Debt is a party to an Interest Rate Protection Agreement (that
shall remain in effect for the twelve month period after the
Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether
higher or lower) shall be used and (5) there shall be excluded
from Consolidated Fixed Charges any Consolidated Fixed Charges
related to any amount of Debt that was outstanding during or
subsequent to the Reference Period but is not outstanding on the
Transaction Date, except for Consolidated Fixed Charges actually
incurred with respect to Debt borrowed (as adjusted pursuant to
clause (4)) (x) under a revolving credit or similar arrangement
to the extent the commitment thereunder remains in effect on the
Transaction Date or (y) pursuant to the provision described in
clause (iii) of Section 1008(b). For the purpose of making this
computation, Asset Sales and Asset Acquisitions that have been
made by any Person that has become a Restricted Subsidiary of the
Company or an Eligible Joint Venture or been merged with or into
the Company or any Restricted Subsidiary of the Company or an
Eligible Joint Venture during the Reference Period, or subsequent
to the Reference Period and prior to the Transaction Date shall
be calculated on a pro forma basis, as shall be all the
transactions contemplated by the calculations referred to in
clauses (1) through (5) above with respect to the Persons or
businesses that were the subject of such Asset Sales and Asset
Acquisitions, assuming such Asset Sales or Asset Acquisitions oc-
curred on the first day of the Reference Period.
"Foreign Asset Disposition" means an Asset Disposition
in respect of the Capital Stock or Property of a Restricted
Subsidiary of the Company or an Eligible Joint Venture to the
extent that the proceeds of such Asset Disposition are received
by a Person subject in respect of such proceeds to the tax laws
of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles
in the U.S. as in effect as of the date of this Indenture, ap-
plied on a basis consistent with the principles, methods,
procedures and practices employed in the preparation of the
Company'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" means a Security evidencing all or a
part of the Securities, issued to the Depositary, or pursuant to
the Depositary's instruction, in accordance with Section 312 and
bearing the legend prescribed in Section 312.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Debt of any other Person and, without limiting the generality of
the foregoing, any Debt obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether arising by virtue of partner-
ship arrangements (other than solely by reason of being a general
partner of a partnership), or by agreement to keep-well, to
purchase assets, goods, securities or services, or to take-or-
pay, or to maintain financial statement conditions or otherwise)
or (ii) entered into for purposes of assuring in any other manner
the obligee of such Debt of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in
part), provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business or the grant of a Lien in connection with any Non-
Recourse Debt. The term "Guarantee" used as a verb has a corre-
sponding meaning.
"Holder," "holder of Securities," "Securityholder" and
other similar terms are defined to mean the registered holder of
any Security.
"Incur" means with respect to any Debt, to incur,
create, issue, assume, Guarantee or otherwise become liable for
or with respect to, or become responsible for, the payment of,
contingently or otherwise, such Debt, provided that neither the
accrual of interest (whether such interest is payable in cash or
kind) nor the accretion of original issue discount shall be
considered an Incurrence of Debt. The term "Incurrence" has a
corresponding meaning.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Protection Agreement" means, with
respect to any Person, any interest rate protection agreement,
interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement intended to protect such
Person against fluctuations in interest rates to or under which
such Person or any of its Subsidiaries is a party or a benefi-
ciary on the date of this Indenture or becomes a party or a
beneficiary thereafter.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
"Investment" in a Person means any investment in, loan
or advance to, Guarantee on behalf of, directly or indirectly, or
other transfer of assets to such Person (other than sales of
products and services in the ordinary course of business).
"Investment Grade" means with respect to the Securi-
ties, (i) in the case of S&P, a rating of at least BBB, (ii) in
the case of Moody's, a rating of at least Baa3, and (iii) in the
case of a Rating Agency other than S&P or Moody's, the equivalent
rating, or in each case, any successor, replacement or equivalent
definition as promulgated by S&P, Moody's or other Rating Agency
as the case may be.
"Issue Date" means the date on which the Securities are
first authenticated and delivered under the Indenture.
"Joint Venture" means a joint venture, partnership or
other similar arrangement, whether in corporate, partnership or
other legal form.
"Kiewit" means and includes Kiewit Energy Company and
any other Subsidiary of Peter Kiewit Sons', Inc., Kiewit
Construction Group Inc. or Kiewit Diversified Group, Inc.
"Lien" means, with respect to any Property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such Property, but shall not include
any partnership, joint venture, shareholder, voting trust or
other similar governance agreement with respect to Capital Stock
in a Subsidiary or Joint Venture. For purposes of this Inde-
nture, the Company shall be deemed to own subject to a Lien any
Property that it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such
Property.
"Moody's" means Moody's Investors Services, Inc.
"Net Cash Proceeds" from an Asset Disposition means
cash payments received (including any cash payments received by
way of a payment of principal pursuant to a note or installment
receivable or otherwise, but only as and when received (including
any cash received upon sale or disposition of any such note or
receivable), excluding any other consideration received in the
form of assumption by the acquiring Person of Debt or other
obligations relating to the Property disposed of in such Asset
Disposition or received in any form other than cash) therefrom,
in each case, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses of any kind
(including consent and waiver fees and any applicable premiums,
earn-out or working interest payments or payments in lieu or in
termination thereof) incurred, (ii) all federal, state, provin-
cial, foreign and local taxes and other governmental charges
required to be accrued as a liability under GAAP (a) as a conse-
quence of such Asset Disposition, (b) as a result of the repay-
ment of any Debt in any jurisdiction other than the jurisdiction
where the Property disposed of was located or (c) as a result of
any repatriation of any proceeds of such Asset Disposition, (iii)
a reasonable reserve for the after-tax cost of any indemnifica-
tion payments (fixed and contingent) attributable to seller's
indemnities to the purchaser undertaken by the Company, any of
its Restricted Subsidiaries or any Eligible Joint Venture in
connection with such Asset Disposition (but excluding any
payments that by the terms of the indemnities shall not, under
any circumstances, be made during the term of the Securities),
(iv) all payments made on any Debt that is secured by such
Property, in accordance with the terms of any Lien upon or with
respect to such Property, or that must by its terms or by
applicable law or in order to obtain a required consent or waiver
be repaid out of the proceeds from or in connection with such
Asset Disposition, and (v) all distributions and other payments
made to holders of Capital Stock of Restricted Subsidiaries or
Eligible Joint Ventures (other than the Company or its Restricted
Subsidiaries) as a result of such Asset Disposition.
"Net Income" of any Person for any period means the net
income (loss) of such Person for such period, determined in
accordance with GAAP, except that extraordinary and non-recurring
gains and losses as determined in accordance with GAAP shall be
excluded.
"Net Worth" of any Person is defined to mean, as of any
date, the aggregate of capital, surplus and retained earnings
(including any cumulative currency translation adjustment) of
such Person and its consolidated Subsidiaries as would be shown
on a consolidated balance sheet of such Person and its
consolidated Subsidiaries prepared as of such date in accordance
with GAAP. When the "Person" referred to above is the Company,
the foregoing references to "Subsidiaries" shall be deemed to
refer to "Restricted Subsidiaries."
"Non-Recourse", as applied to any Debt or any sale-
leaseback, means any project financing that is or was Incurred
with respect to the development, acquisition, design,
engineering, procurement, construction, operation, ownership,
servicing or management of one Permitted Facility (or two or more
Permitted Facilities that are operated in the form of a single
business and as one technological unit), provided that such
financing is without recourse to the Company, any Restricted Sub-
sidiary or any Eligible Joint Venture other than any Restricted
Subsidiary or any Eligible Joint Venture that does not own any
Property other than such Permitted Facility or a direct or indi-
rect interest therein, provided further that such financing may
be secured by a Lien on only (i) the Property that constitutes
such Permitted Facility, (ii) the income from and proceeds of
such Permitted Facility, (iii) the Capital Stock of the
Restricted Subsidiary or Eligible Joint Venture that owns the
Property that constitutes such Permitted Facility and (iv) the
Capital Stock of the Restricted Subsidiary or Eligible Joint
Venture obligated with respect to such financing and of any
Subsidiary or Joint Venture (that is a Restricted Subsidiary or
an Eligible Joint Venture) of such Person that owns a direct or
indirect interest in the Permitted Facility, and provided further
that an increase in the amount of Debt with respect to a Permit-
ted Facility pursuant to the financing provided pursuant to the
terms of this definition (except for the first refinancing of
Construction Financing) may not be Incurred to fund or enable the
funding of any dividend or other distribution in respect of
Capital Stock. The fact that a portion of financing with respect
to a Permitted Facility is not Non-Recourse shall not prevent
other portions of the financing with respect to such Permitted
Facility from constituting Non-Recourse Debt if the foregoing
requirements of this definition are fulfilled with respect to
such other portions. Notwithstanding anything in this definition
to the contrary, (i) Non-Recourse Debt in respect of any Permit-
ted Facility that uses thermal energy drawn from a single
localized geothermal reservoir may be cross-collateralized with
the Property, income, proceeds and Capital Stock in respect of
any other Permitted Facility that uses thermal energy drawn from
the same localized geothermal reservoir, (ii) Acquired Debt of a
Person that was Incurred with respect to, and that is jointly
secured by, two or more Permitted Facilities (all of which need
not use thermal energy drawn from the same localized geothermal
reservoir) (and other Property related to such Permitted
Facilities) shall be deemed to be Non-Recourse if, upon such
Person becoming a Restricted Subsidiary or an Eligible Joint
Venture, such Acquired Debt would fulfill the requirements of the
first sentence of this definition if such Permitted Facilities
constituted a single Permitted Facility and (iii) for the purpose
of this Indenture, (a) the Permitted Facilities that jointly
secure a single Non-Recourse Debt pursuant to clause (i) of this
sentence shall be deemed to be a single Permitted Facility and
(b) the Permitted Facilities that jointly secure a single
Acquired Debt shall be deemed to be a single Permitted Facility.
"Offer to Purchase" means, as appropriate, a Change of
Control Offer pursuant to Section 1013 or an Excess Proceeds
Offer pursuant to Section 1015.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the President or any Vice
President and by the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Controller, the Assistant Controller,
the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act and include the
statements provided for in this Indenture if and to the extent
required thereby.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Company
or who may be other counsel satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture
Act and include the statements provided for in this Indenture, if
and to the extent required thereby.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities that have come due or that are to be
called for redemption, for whose payment or redemption money
in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company or a
Restricted Subsidiary) in trust for the Holders of such
Securities; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision for giving such
notice within 10 days of such date of determination, satis-
factory to the Trustee, has been made;
(iii) Securities that have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities as to which Defeasance has been
effected pursuant to Section 1202;
provided that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date,
Securities owned by the Company or any other obligor upon the
Securities or any Affiliate or Restricted Subsidiary of the
Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or
other action, only Securities which the Trustee knows to be so
owned shall be so disregarded, Securities so owned which 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 Company or any other obligor upon the
Securities or any Restricted Subsidiary of the Company or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Permitted Facility" means (i) an electric power or thermal
energy generation or cogeneration facility or related facilities
(including residual waste management and facilities that use
thermal energy from a cogeneration facility), and its or their
related electric power transmission, fuel supply and fuel
transportation facilities, together with its or their related
power supply, thermal energy and fuel contracts and other
facilities, services or goods that are ancillary, incidental,
necessary or reasonably related to the marketing, development,
construction, management, servicing, ownership or operation of
the foregoing, owned by a utility or otherwise, as well as other
contractual arrangements with customers, suppliers and contrac-
tors or (ii) any infrastructure facilities related to (A) the
treatment of water for municipal and other uses, (B) the
treatment and/or management of waste water, (C) the treatment,
management and/or remediation of waste, pollution and/or
potential pollutants and (D) any other process or environmental
purpose.
"Permitted Funding Company Loans" means (a) Debt of a
Restricted Subsidiary, all the Capital Stock of which is owned,
directly or indirectly by the Company and that (x) does not own
any direct or indirect interest in a Permitted Facility and (y)
is not directly or indirectly obligated on any Debt owed to any
Person other than the Company, a Restricted Subsidiary or an
Eligible Joint Venture (a "Funding Company"), owed to a Restrict-
ed Subsidiary or an Eligible Joint Venture that is not directly
or indirectly obligated on any Debt owed to any Person other than
the Company, a Restricted Subsidiary or an Eligible Joint Venture
(a "Holding Company"), provided that such Debt (i) does not
require that interest be paid in cash at any time sooner than six
months after the final Stated Maturity of the Securities, (ii)
does not require any payment of principal at any time sooner than
six months after the final Stated Maturity of the Securities,
(iii) is subordinated in right of payment to all other Debt of
such Restricted Subsidiary other than Debt Incurred pursuant to
clause (vii) of Section 1009(b), all of which shall be pari passu
and (iv) is evidenced by a subordinated note in the form attached
to the Indenture as Exhibit A and that shall not contain or be
governed by any contractual provisions other than those set forth
in Exhibit A, and (b) Debt of a Holding Company to a Funding
Company.
"Permitted Investment" means any Investment that is made
directly or indirectly by the Company and its Restricted
Subsidiaries in (i) a Restricted Subsidiary or Eligible Joint
Venture (excluding for the purpose of this clause (i) any
Construction Financing) that, directly or indirectly, is or shall
be engaged in the construction, development, acquisition,
operation, servicing, ownership or management of a Permitted
Facility or in any other Person as a result of which such other
Person becomes such a Restricted Subsidiary or an Eligible Joint
Venture, provided that at the time that any of the foregoing In-
vestments is proposed to be made, no Event of Default or event
that, after giving notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing, (ii)
Construction Financing provided by the Company (A) to any of its
Restricted Subsidiaries (other than an Eligible Joint Venture) up
to 100% of the Construction Financing required by such Restricted
Subsidiary and (B) to any Eligible Joint Venture a portion of the
Construction Financing required by such Eligible Joint Venture
that does not exceed the ratio of the Capital Stock in such
Eligible Joint Venture that is owned directly or indirectly by
the Company to the total amount of the Capital Stock in such
Eligible Joint Venture that is owned directly and indirectly by
the Company and Kiewit together (provided that the Company may
provide such Construction Financing to such Eligible Joint Ven-
ture only if Kiewit provides the balance of such Construction
Financing or otherwise causes it to be provided), if, in either
case, (x) the aggregate proceeds of all the Construction Financ-
ing provided is not more than 85% of the sum of the aggregate
proceeds of such Construction Financing and the aggregate owners'
equity investment in such Restricted Subsidiary or such Eligible
Joint Venture, as the case may be, (y) the Company receives a
pledge or assignment of all the Capital Stock of such Restricted
Subsidiary or such Eligible Joint Venture, as the case may be,
that is owned by non-governmental Person (other than the Company,
its Subsidiaries or the Eligible Joint Ventures) that is
permitted to be pledged for such purpose under applicable law and
(z) neither the Company nor Kiewit reduces its beneficial owner-
ship in such Restricted Subsidiary or such Eligible Joint
Venture, as the case may be, prior to the repayment in full of
the Company's portion of the Construction Financing, (iii) any
Cash Equivalents, (iv) prepaid expenses, negotiable instruments
held for collection and lease, utility and workers' compensation,
performance and other similar deposits in the ordinary course of
business consistent with past practice, (v) loans and advances to
employees made in the ordinary course of business and consistent
with past practice, (vi) Debt incurred pursuant to Currency
Protection Agreements and Interest Rate Protection Agreements as
otherwise permitted by this Indenture, (vii) bonds, notes, deben-
tures or other debt securities and instruments received as a
result of Asset Dispositions to the extent permitted by Sections
1015 and 1022, (viii) any Lien permitted under Section 1012 and
(ix) bank deposits and other Investments (to the extent they do
not constitute Cash Equivalents) required by lenders in
connection with any Non-Recourse Debt, provided that the
President or the Chief Financial Officer of the Company
determines in good faith, as evidenced by an Officers'
Certificate, that such bank deposits or Investments are required
to effect such financings and are not materially more
restrictive, taken as a whole, than comparable requirements in
comparable financings in the applicable jurisdiction.
"Permitted Joint Venture" means a Joint Venture (i) that is
or shall be formed with respect to the construction, development,
acquisition, servicing, ownership, operation or management of one
or more Permitted Facilities and (ii) in which (A) the Company or
(B) the Company and Kiewit together, directly or indirectly, own
at least 70% of the Capital Stock therein (of which the Company
must own at least half (in any event not less than 35% of the
total outstanding Capital Stock)), provided that if applicable
non-U.S. law restricts the amount of Capital Stock that the
Company may own, the Company must own at least 70% of the amount
of Capital Stock that it may own pursuant to such law, which in
any event must be not less than 35% of the total outstanding
Capital Stock therein and (iii) in respect of which the Company
alone or in combination with Kiewit, directly or indirectly, (a)
controls, by voting power, board or management committee member-
ship, or through the provisions of any applicable partnership,
shareholder or other similar agreement or under an operating,
maintenance or management agreement or otherwise, the management
and operation of the Joint Venture or any Permitted Facilities of
the Joint Venture or (b) otherwise has significant influence over
the management or operation of the Joint Venture or any Permitted
Facility of the Joint Venture in all material respects (signifi-
cant influence includes, without limitation, the right to control
or veto any material act or decision) in connection with such
management or operation. Any Joint Venture that is a Permitted
Joint Venture pursuant to this definition because of the
ownership of Capital Stock therein by Kiewit shall cease to be a
Permitted Joint Venture if (x) Kiewit disposes of any securities
issued by the Company and, as a result of such disposition,
Kiewit becomes the beneficial owner (as such term is defined
under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of less than 25% of the outstanding
shares of Voting Stock of the Company or (y) (I) as a result of
any action other than a disposition of securities by Kiewit,
Kiewit becomes the beneficial owner of less than 25% of the
outstanding shares of Voting Stock of the Company and (II)
thereafter Kiewit disposes of any securities issued by the
Company as a result of which the beneficial ownership by Kiewit
of the outstanding Voting Stock of the Company is further re-
duced, provided that thereafter such Joint Venture may become a
Permitted Joint Venture if Kiewit becomes the beneficial owner of
at least 25% of the outstanding shares of the Voting Stock of the
Company and the other conditions set forth in this definition are
fulfilled.
"Permitted Payments" means, with respect to the Company, any
of its Restricted Subsidiaries or any Eligible Joint Venture, (i)
any dividend on shares of Capital Stock of the Company payable
(or to the extent paid) solely in Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to
purchase Capital Stock (other than Redeemable Stock) of the
Company and any distribution of Capital Stock (other than
Redeemable Capital Stock) of the Company in respect of the
exercise of any right to convert or exchange any instrument
(whether Debt or equity and including Redeemable Capital Stock)
into Capital Stock (other than Redeemable Capital Stock) of the
Company, (ii) the purchase or other acquisition or retirement for
value of any shares of the Company's Capital Stock, or any
option, warrant or other right to purchase shares of the
Company's Capital Stock with additional shares of, or out of the
proceeds of a substantially contemporaneous issuance of, Capital
Stock other than Redeemable Stock, (iii) any defeasance, re-
demption, purchase or other acquisition for value of any Debt
that by its terms ranks subordinate in right of payment to the
Securities with the proceeds from the issuance of (x) Debt that
is subordinate to the Securities at least to the extent and in
the manner as the Debt to be defeased, redeemed, purchased or
otherwise acquired is subordinate in right of payment to the
Securities, provided that such subordinated Debt provides for no
mandatory payments of principal by way of sinking fund, mandatory
redemption or otherwise (including defeasance) by the Company
(including, without limitation, at the option of the holder
thereof other than an option given to a holder pursuant to a
"change of control" or an "asset disposition" covenant that is no
more favorable to the holders of such Debt than comparable
covenants for the Debt being defeased, redeemed, purchased or ac-
quired or, if none, Sections 1013 and 1015 and such Debt is not
in an amount (net of any original issue discount) greater than,
any Stated Maturity of the Debt being replaced and the proceeds
of such subordinated Debt are utilized for such purpose within 45
days of issuance or (y) Capital Stock (other than Redeemable
Stock), (iv) Restricted Payments in an amount not to exceed $50
million in the aggregate provided that no payment may be made
pursuant to this clause (iv) if an Event of Default, or an event
that, after giving notice or lapse of time or both, would become
an Event of Default, has occurred and is continuing, (v) any
payment or Investment required by applicable law in order to con-
duct business operations in the ordinary course, (vi) a Permitted
Investment and (vii) Investments in Unrestricted Subsidiaries and
other Persons that are not Restricted Subsidiaries or Eligible
Joint Ventures in an amount not to exceed $50 million in the
aggregate, provided that no payment or Investment may be made
pursuant to this clause (vii) if an Event of Default, or an event
that, after giving notice or lapse of time or both, would become
an Event of Default, has occurred and is continuing.
Notwithstanding the foregoing, the amount of Investments that may
be made pursuant to clauses (iv) and (vii), as the case may be,
may be increased by the net reduction in Investments of the type
made previously pursuant to clauses (iv) and (vii), as the case
may be, that result from payments of interest on Debt, dividends,
or repayment of loans or advances, the proceeds of the sale or
disposition of the Investment or other return of the amount of
the original Investment to the Company, the Restricted Subsidiary
or the Eligible Joint Venture that made the original Investment
from the Person in which such Investment was made or any
distribution or payment of such Investment to the extent that
such distribution or payment constituted either a Restricted
Payment or a Permitted Payment, provided that (x) the aggregate
amount of such payments shall not exceed the amount of the origi-
nal Investment by the Company, such Restricted Subsidiary or
Eligible Joint Venture that reduced the amount available pursuant
to clause (iv) or clause (vii), as the case may be, for making
Restricted Payments and (y) such payments may be added pursuant
to this proviso only to the extent such payments are not included
in the calculation of Adjusted Consolidated Net Income.
"Permitted Working Capital Facilities" means one or more
loan or credit agreements providing for the extension of credit
to the Company for the Company's working capital purposes, which
credit agreements shall be ranked pari passu with or subordinate
to the Securities in right of payment and may be secured or
unsecured.
"Person" means an individual, a corporation, a partnership,
an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) or preferred
or preference stock of such Person that is outstanding or issued
on or after the Issue Date of the Securities.
"Property" of any Person means all types of real, personal,
tangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such
Person under GAAP.
"Purchase Date" means, as appropriate, the Change of Control
Purchase Date under Section 1013 or the Excess Proceeds Purchase
Date under Section 1015.
"Purchase Money Debt" means Debt representing, or Incurred
to finance, the cost of acquiring any Property, provided that (i)
any Lien securing such Debt does not extend to or cover any other
Property other than the Property being acquired and (ii) such
Debt is incurred, and any Lien with respect thereto is granted,
within 180 days of the acquisition of such Property.
"Rating Agencies" means (i) S&P and (ii) Moody's or (iii) if
S&P or Moody's or both do not make a rating of the Securities
publicly available, a nationally recognized securities rating
agency or agencies, as the case may be, selected by the Company,
which shall be substituted for S&P, Moody's or both, as the case
may be.
"Rating Category" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent
successor categories), (ii) with respect to Moody's, any of the
following categories: Ba, B, Caa, Ca, C and D (or equivalent
successor categories) and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In
determining whether the rating of the Securities has decreased by
one or more gradations, gradations within Rating Categories (+
and - for S&P, 1, 2 and 3 for Moody's or the equivalent grada-
tions for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB+ to BB,
as well as from BB- to B+, shall constitute a decrease of one
gradation).
"Rating Decline" means the occurrence of the following on,
or within 90 days after, the earlier of (i) the occurrence of a
Change of Control and (ii) the date of public notice of the
occurrence of a Change of Control or of the public notice of the
intention of the Company to effect a Change of Control (the
"Rating Date") which period shall be extended so long as the
rating of the Securities is under publicly announced consider-
ation for possible downgrading by any of the Rating Agencies):
(a) in the event that the Securities are rated by either Rating
Agency on the Rating Date as Investment Grade, the rating of the
Securities by both such Rating Agencies shall be reduced below
Investment Grade, or (b) in the event the Securities are rated
below Investment Grade by both such Rating Agencies on the Rating
Date, the rating of the Securities by either Rating Agency shall
be decreased by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
"Redeemable Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is (i)
required to be redeemed prior to the Stated Maturity of the
Securities, (ii) redeemable at the option of the holder of such
class or series of Capital Stock at any time prior to the Stated
Maturity of the Securities or (iii) convertible into or exchange-
able for Capital Stock referred to in clause (i) or (ii) above or
Debt having a scheduled maturity prior to the Stated Maturity of
the Securities, provided that any Capital Stock that would not
constitute Redeemable Stock but for provisions thereof giving
holders thereof the right to require the Company to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale"
or a "change of control" occurring prior to the Stated Maturity
of the Securities shall not constitute Redeemable Stock if the
"asset sale" or "change of control" provision applicable to such
Capital Stock is no more favorable to the holders of such Capital
Stock than the provisions contained in Section 1013 and 1015 and
such Capital Stock specifically provides that the Company shall
not purchase or redeem any such Capital Stock pursuant to such
covenants prior to the Company's purchase of Securities required
to be repurchased by the Company under Sections 1013 and 1015.
"Redemption Date" when used with respect to any Security to
be redeemed, means the date fixed for redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Reference Period" means the four most recently completed
fiscal quarters for which financial information is available
preceding the date of a transaction giving rise to the need to
make a financial calculation.
"Regular Record Date", for the interest payable on any
Interest Payment Date means the January 1 or July 1 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Company's Capital Stock,
provided that a dividend or other distribution consisting of the
Capital Stock of an Unrestricted Subsidiary shall not constitute
a Restricted Payment except to the extent of the portion thereof
that is equal to the portion of the total Investment in such
Unrestricted Subsidiary that is represented by the Investment
that was made pursuant to clause (vii) of the definition of "Per-
mitted Payment," (ii) any payment on account of the purchase,
redemption, retirement or acquisition for value of the Company's
Capital Stock, (iii) any defeasance, redemption, purchase or
other acquisition or retirement for value prior to the scheduled
maturity of any Debt ranked subordinate in right of payment to
the Securities other than repayment of Debt of the Company to a
Restricted Subsidiary or an Eligible Joint Venture, (iv) any In-
vestment made in a Person (other than the Company or any
Restricted Subsidiary or any Eligible Joint Venture) and (v)
designating a Restricted Subsidiary as an Unrestricted Subsidiary
(the Restricted Payment made upon such a designation to be
determined as the fair market value of the Capital Stock of such
Restricted Subsidiary owned directly or indirectly by the Company
at the time of the designation, but in no event less than the
amount of the Investment made in such Restricted Subsidiary
directly or indirectly by the Company). Notwithstanding the
foregoing, "Restricted Payment" shall not include any Permitted
Payment, except that any payment made pursuant to clauses (iv)
and (v) of the definition of "Permitted Payment" shall be counted
in the calculation set forth in clause (c) of Section 1010(a).
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Corporation.
"Securities" means securities designated in the first
paragraph of the RECITALS OF THE COMPANY.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Senior Debt" means the principal of and interest on all
Debt of the Company whether created, Incurred or assumed before,
on or after the Issue Date of the Securities (other than the
Securities), provided that Senior Debt shall not include (i) Debt
that, when Incurred and without respect to any election under Se-
ction 1111(b) of Title 11, United States Code, was without
recourse to the Company, (ii) Debt of the Company to any
Affiliate and (iii) any Debt of the Company that, by the terms of
the instrument creating or evidencing the same, is specifically
designated as being junior in right of payment to the Securities
or any other Debt of the Company.
"Significant Subsidiary" means a Restricted Subsidiary that
is a "significant subsidiary" as defined in Rule 1-02(v) of
Regulation S-X under the Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"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.
"Subsidiary" means, with respect to any Person including,
without limitation, the Company and its Subsidiaries, (i) any
corporation or other entity of which such Person owns, directly
or indirectly, a majority of the Capital Stock or other ownership
interests and has ordinary voting power to elect a majority of
the board of directors or other persons performing similar func-
tions, and (ii) with respect to the Company and, as appropriate,
its Subsidiaries, any Permitted Joint Venture, including, without
limitation, Coso Land Company Joint Venture, Coso Finance Part-
ners, Coso Energy Developers and Coso Power Developers, provided
that in respect of any Subsidiary that is not a Permitted Joint
Venture, the Company must exercise control over such Subsidiary
and its Property to the same extent as a Permitted Joint Venture.
"Subsidiary Refinancing Debt" means Debt issued in exchange
for, or the proceeds of which are used to refinance (including to
purchase), outstanding Debt of a Restricted Subsidiary or an
Eligible Joint Venture, including, without limitation, Construc-
tion Financing, in an amount (or, if such new Debt provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, with an
original issue price) not to exceed the amount so exchanged or
refinanced (plus accrued interest or dividends and all fees,
premiums (in excess of accreted value) and expenses related to
such exchange or refinancing), for which purpose the amount so
exchanged or refinanced shall not exceed, in the case of Debt, to
the lesser of (x) the principal amount of the Debt so exchanged
or refinanced and (y) if the Debt being exchanged or refinanced
was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of
such exchange or refinancing, and, in the case of an equity
investment made in lieu or as part of Construction Financing
Debt, in an amount not to exceed the capital and surplus shown on
the balance sheet of such Restricted Subsidiary or Eligible Joint
Venture, provided that (A) such Debt shall be Non-Recourse, if
the Debt so exchanged or refinanced is Non-Recourse and (B) the
Average Life of the new Debt shall be equal to or greater than
the Average Life of the Debt to be exchanged or refinanced, pro-
vided further that upon the first refinancing of any Construction
Financing of a Restricted Subsidiary or an Eligible Joint
Venture, (i) the amount of the Subsidiary Refinancing Debt issued
in exchange for or to refinance such Construction Financing shall
not be limited by this provision and (ii) the Subsidiary Refi-
nancing Debt issued in exchange for or to refinance such Con-
struction Financing shall not be subject to the provisions of the
foregoing clause (B) of this provision.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation
to trade creditors Incurred, created, assumed or Guaranteed by
such Person or any of its Subsidiaries or Joint Ventures arising
in the ordinary course of business.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed;
provided that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" shall mean, to the
extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary of the
Company that becomes an Unrestricted Subsidiary in accordance
with the requirements set forth in the next sentence. The
Company may designate any Restricted Subsidiary as an Unrestrict-
ed Subsidiary if (a) such designation is in compliance with Sec-
tion 1010(a) and (b) after giving effect to such designation,
such Subsidiary does not own, directly or indirectly, a majority
of the Capital Stock or the Voting Stock of any other Restricted
Subsidiary unless such other Restricted Subsidiary is designated
as an Unrestricted Subsidiary at the same time. Any such desig-
nation shall be effected by filing with the Trustee an Officers'
Certificate certifying that such designation complies with the
requirements of the immediately preceding sentence. No Debt or
other obligation of an Unrestricted Subsidiary may be with
recourse to the Company, any of its Restricted Subsidiaries, any
Eligible Joint Venture or any of their respective Property. An
Unrestricted Subsidiary may be designated as a Restricted
Subsidiary if, (i) all the Debt of such Unrestricted Subsidiary
could be Incurred under Section 1009, and (ii) any portion of
such Debt could not be incurred thereunder, if the Company could
borrow all such remaining Debt pursuant to Section 1008(a).
"U.S. Government Obligations" means securities that are (i)
direct obligations of the U.S. 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 U.S., the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the U.S., that, 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 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 depos-
itory 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.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title
"vice president".
"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.
(b) Other definitions:
Defined Term Defined in Section
Act 104
Change of Control Offer 1013(b)
Change of Control Purchase Date 1013(b)
Covenant Defeasance 1203
Defaulted interest 307
Defeasance 1202
Default Amount 502
Excess Proceeds 1015(a)
Excess Proceeds Offer 1015(a)
Excess Proceeds Purchase Date 1015(e)
Event of Default 501
Ineligible Investment 1022
Notice of Default 501(5)
Record Expiration Date 104
Security Register 305
Security Registrar 305
Surviving Entity 801
10% Limit 1022
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied
with.
Section 103. Form of Documents Delivered to Trustee.
If several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
If any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, if it is hereby
expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section
104.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. If such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders of Securities,
provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities
on such record date, and no other Holders, shall be entitled to
take the relevant actions whether or not such Holders remain
Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the
applicable Record Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date;
and provided further that for the purpose of determining whether
Holders of the requisite principal amount of such Securities have
taken such action, no Security shall be deemed to have been Out-
standing on such record date unless it is also Outstanding on the
date such action is to become effective. Nothing in this
paragraph shall prevent the Company from setting a new record
date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any
Person be cancelled and of no effect), nor shall anything in this
paragraph be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Record Expiration
Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to
join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section
507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date; and provided further
that for the purpose of determining whether Holders of the
requisite principal amount of such Securities have taken such
action, no Security shall be deemed to have been Outstanding on
such record date unless it is also Outstanding on the date such
action is to become effective. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record
date for any action (whereupon the record date previously set
shall automatically and without any action by any Person be
cancelled and of no effect), nor shall anything in this paragraph
be construed to render ineffective any action taken by Holders of
the requisite principal amount of Outstanding Securities on the
date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to
be submitted for potential action by Holders and the applicable
Record Expiration Date to be given to the Company in writing and
to each Holder of Securities in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section
104, the party hereto that sets such record date may designate
any day as the "Record Expiration Date" and from time to time may
change the Record Expiration Date to any earlier or later day,
provided that no such change shall be effective unless notice of
the proposed new Record Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or before the existing Record
Expiration Date. If a Record Expiration Date is not designated
with respect to any record date set pursuant to this Section 104,
the party hereto that set such record date shall be deemed to
have initially designated the 180th day after such record date as
the Record Expiration Date with respect thereto, subject to its
right to change the Record Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Record Expiration
Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing and mailed, first-class
postage prepaid, to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this Indenture, Attention: General Counsel, or
at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
When this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
Neither the failure to mail or give such notice as otherwise
provided herein, nor any defect in any notice so mailed or given
to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. When 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 equiva-
lent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition prece-
dent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under
such Act to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein, the Cross-Reference
Table and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person other than the parties hereto
and their successors hereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under
this Indenture. This Indenture may not be used to interpret
another indenture, loan agreement or debt agreement of the
Company or any of its Subsidiaries. No such other indenture or
loan or debt agreement may be utilized to interpret this Inden-
ture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
BUT OTHERWISE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE SECURITIES TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
Section 113. Legal Holidays.
If any Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal (and premium, if
any) need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect (including
with respect to the accrual of interest) as if made on the Inter-
est Payment Date, Redemption Date or Purchase Date, or at the
Stated Maturity.
Section 114. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator,
as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the
Securities.
Section 115. Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an
original, but all of them together shall represent the same
agreement.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in
this Article Two, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be deter-
mined by the officers executing such Securities, as evidenced by
their execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted
by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[If the Security is a permanent Global Security, insert a
legend relating to limitations on the transferability of the
permanent Global Security in such form as may be required by the
Depositary and in accordance with this Indenture.]
CALIFORNIA ENERGY COMPANY, INC.
10-1/4% Senior Discount Notes due 2004.
No. _________ $
CUSIP No.
California Energy Company, Inc., a corporation duly orga-
nized and existing under the laws of the State of Delaware
(herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________, or
registered assigns, the principal sum of ___________________
Dollars on January 15, 2004 and to pay interest thereon from
January 15, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually
on January 15 and July 15 in each year, commencing July 15, 1997
at the rate of 10-1/4% per annum, until the principal hereof is
paid or duly provided for, provided that any principal and
premium, if any, and any such installment of interest, that is
overdue shall bear interest at the rate of 11-1/4% per annum (to
the extent that the payment of such interest shall be legally en-
forceable), from the dates such amounts are due until they are
paid or duly provided for, and such interest shall be payable on
demand. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trust-
ee, notice whereof shall be given to Holders of Securities not
less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any
interest on this Security shall be made at the office or agency
of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, or at such additional offices or
agencies as the Company from time to time may designate for such
purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public
and private debts, provided that payment of the principal of (and
premium, if any, on) this Security shall be made only upon
presentation and surrender hereof at any such office or agency
and, at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled there-
to as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
CALIFORNIA ENERGY COMPANY, INC.
[Seal]
By:
Title:
Attest:
Title:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
Securities of the Company designated as its 10-1/4% Senior
Discount Notes due 2004 (herein called the "Securities"), limited
in aggregate principal amount of $529,640,000, issued and to be
issued under an Indenture, dated as of March 24, 1994 (herein
called the "Indenture", which term shall have the meaning as-
signed to it in such instrument), between the Company and IBJ
Schroder Bank & Trust Company, as Trustee (herein called the
"Trustee" which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than
30 nor more than 60 days' notice by mail, at any time on or after
January 15, 1999 and prior to maturity, as a whole or in part, at
the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount), if redeemed
during the 12-month period commencing on or after January 15 of
the years indicated,
Redemption
Year Price
1999 . . . . . . . . . . . . . . . . . . . 105.125%
2000 . . . . . . . . . . . . . . . . . . . 103.417%
2001 . . . . . . . . . . . . . . . . . . . 101.708%
2002 and thereafter. . . . . . . . . . . . 100.000%
together in the case of any such redemption with accrued
interest, if any, to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
Upon the occurrence of a Change of Control, the Company
shall be required to make an Offer to Purchase all or a specified
portion of the Securities at a Purchase Price in cash equal to
(a) 101 percent of the Accreted Value thereof on any Purchase
Date occurring prior to January 15, 1997 or (b) 101 percent of
the principal amount thereof on any Purchase Date occurring on or
after January 15, 1997 plus accrued and unpaid interest, if any,
to such Purchase Date. If the Company, any Restricted Subsidiary
or any Eligible Joint Venture consummates an Asset Disposition,
under certain circumstances, the Company shall be required to
make an Offer to Purchase up to all or a specified portion of the
Securities at a Purchase Price in cash equal to (a) 100 percent
of the Accreted Value thereof on any Purchase Date occurring
prior to the January 15, 1997 or (b) 100 percent of the principal
amount thereof on any Purchase Date occurring on or after January
15, 1997, plus accrued and unpaid interest, if any, to such Pur-
chase Date, in an amount equal to any Net Cash Proceeds from such
an Asset Disposition that are not used to reinvest in the
business of the Company and/or repay in a permanent reduction of
Debt of the Company or Debt of its Restricted Subsidiaries or
Eligible Joint Ventures. Holders of Securities shall receive
notice of any such Offer to Purchase from the Company prior to
the related Purchase Date and may elect to have such Securities
purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing on the reverse side of the Security.
In the event of redemption, or purchase pursuant to an Offer
to Purchase, of this Security in part only, a new Security or
Securities for the portion hereof not redeemed or purchased shall
be issued in the name of the Holder hereof upon the cancellation
hereof.
The Indenture contains provisions for defeasance at any time
of the entire Debt of this Security or certain restrictive
covenants and Events of Default with respect to this Security,
including, without limitation, covenants relating to Offers to
Purchase, in each case upon compliance with certain conditions
set forth in the Indenture.
If an Event of Default shall occur and be continuing, there
may be declared due and payable the Default Amount of the
Securities, in the manner and with the effect provided in the
Indenture. Until January 15, 1997, the Default Amount in respect
of this Security as of the date upon which the Securities are
declared due and payable shall equal the Accreted Value of this
Security as of such date. On and after January 15, 1997, the
Default Amount in respect of this Security as of any particular
date shall equal 100% of the principal amount of this Security
plus accrued and unpaid interest, if any, to such date.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.
In addition, without the consent of any Holder of a Security, the
Indenture and the Securities may be amended and supplemented to
cure any ambiguity or inconsistency, make other changes that
shall not adversely affect the rights of the Holders or certain
other matters specified in the Indenture. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver, or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities, the Holders of not less than 25
percent in principal amount of the Securities at the time Out-
standing shall have made written request to the Trustee to insti-
tute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in
principal amount of Securities at the time Outstanding a direc-
tion inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to certain suits described in the Indenture, including any
suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed
herein (or, in the case of redemption, on or after the Redemption
Date or, in the case of any purchase of this Security required to
be made pursuant to an Offer to Purchase, on or after the Pur-
chase Date).
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on
this Security at the times, place, manner and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York,
(which initially shall be the corporate trust office of the
Trustee), duly endorsed by, or accompanied by a written instru-
ment of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more
new Securities, of authorized denominations and for the same
aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a
like aggregate principal amount of Securities of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
A director, officer, employee, stockholder or incorporator
of the Company shall not have any liability for any obligations
of the Company under this Security or the Indenture or for any
claim based on, in respect of or by reason of such obligations or
their creation. Each Holder by accepting this Security waives
and releases all such liability. Such waiver and release are
part of the consideration for the issuance of this Security.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of
a 360-day year of 12 30-day months.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York,
as applied to contracts made and performed under the State of New
York, without regard to principles of conflicts of law.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or
(we) assign and transfer this Security to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
Dated: Your Signature:
(sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
(Signature must be guaranteed by a financial
institution that is a member of the
Securities Transfer Agent Medallion Program
("STAMP"), the Stock Exchange Medallion Pro-
gram ("SEMP"), the New York Stock Exchange,
Inc. Medallion Signature Program ("MSP") or
such other signature guarantee program as may
be determined by the Security Registrar in
addition to, or in substitution for, STAMP,
SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its
entirety by the Company pursuant to Section 1013 or 1015 of the
Indenture, check the box: [ ]
If you want to elect to have only a part of the principal
amount at Stated Maturity of this Security purchased by the
Company pursuant to Section 1013 or 1015 of the Indenture, state
the portion of such amount:
$________ Dated:
Your Signature:
(sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:
(Signature must be guaranteed by a financial
institution that is a member of the
Securities Transfer Agent Medallion Program
("STAMP"), the Stock Exchange Medallion Pro-
gram ("SEMP"), the New York Stock Exchange,
Inc. Medallion Signature Program ("MSP") or
such other signature guarantee program as may
be determined by the Security Registrar in
addition to, or in substitution for, STAMP,
SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
Section 204. Form of Trustee's Certificate of Authentication.
Dated:
This is one of the Securities referred to in the within-
mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
As Trustee
By _______________________________
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is limited to
$529,640,000, except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 304, 305, 306, 906 or
1108 or in connection with an Offer to Purchase pursuant to
Section 1013 or 1015.
The Securities shall be known and designated as the "10-1/4%
Senior Discount Notes due 2004" of the Company. Their Stated
Maturity shall be January 15, 2004 and they shall bear interest
at the rate of 10-1/4% per annum, from July 15, 1997 or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, as the case may be, payable semi-annually
on January 15 and July 15, commencing July 15, 1997 until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York main-
tained for such purpose and at any other office or agency main-
tained by the Company for such purpose; provided that (except as
may be provided in any representation letter or agreement with a
"clearing" agency registered under the Exchange Act), payment of
the principal of (and premium, if any, on) the Securities shall
be made only upon presentation and surrender thereof at any such
office or agency and at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register.
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 principal
amount and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such indi-
viduals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Securities; and the Trustee in accordance with such
Company Order shall authenticate and deliver such Securities as
in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substan-
tially in the form provided for herein executed by the Trustee by
manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may deter-
mine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company shall cause
definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of
the Company designated pursuant to Section 1002 without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denomina-
tions and of a like tenor. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Ex-
change.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to
Section 1002 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other govern-
mental charge that may be imposed in connection with any regis-
tration of transfer or exchange of Securities, other than ex-
changes pursuant to Section 304, 906 or 1108 or in accordance
with any Offer to Purchase pursuant to Section 1013 or 1015, and
in any such case not involving any transfer.
Neither the Trustee, the Security Registrar nor the Company
shall be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section
1104 and ending at the close of business on the day of such mail-
ing or (ii) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 306 in
lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, de-
stroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security that is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security that is payable but is not
punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest that shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder in the
manner specified in Section 106 not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Pre-
decessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (sub-
ject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
Offer to Purchase pursuant to Section 1013 or 1015 shall, if
surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that
the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section
309, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided that the Trustee shall not
be required to destroy cancelled Securities.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of
a 360-day year of 12 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP numbers in notices of redemption or repurchase as a
convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in
any notice of a redemption or repurchase and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be
affected by any defect in or omission of such numbers.
Section 312. Global Securities.
(a) The Company designates The Depository Trust Company as
the initial Depositary hereunder. The Company shall execute and
the Trustee shall, in accordance with this Article Three, authen-
ticate and deliver, one or more Global Securities that (i) shall
represent, and shall be denominated in an amount equal to, the
aggregate principal amount of all of the Securities to be repre-
sented by such Global Securities to be issued hereunder, (ii)
shall be registered in the name of the Depositary for such Global
Security or its nominee, (iii) shall be delivered by the Trustee
to the Depositary or pursuant to the Depositary's instructions,
(iv) shall be substantially in the form of Security specified
pursuant to Article Two, with such changes therein as may be
necessary to reflect that each Global Security is a global
security, and (v) shall bear a legend substantially to the
following effect: "This Security is issued in global form and
registered in the name of the Depositary or a nominee thereof.
Unless and until it is exchanged in whole or in part for
Securities in definitive form in accordance with the terms hereof
and of the Indenture referred to on the reverse hereof, this
Security may not be transferred except as a whole by the Depos-
itary to a nominee of the Depositary, or by a nominee of the
Depositary to the Depositary or another nominee of the Deposi-
tary, or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Unless
this certificate is presented by an authorized representative of
the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of the Depositary or its nominee and any
payment is made to the Depositary or its nominee, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof has an
interest herein."
(b) Notwithstanding any other provisions of this Section
312 or of Section 305, unless and until a Global Security is
exchanged in whole or in part for Securities in definitive form,
a Global Security may be transferred, in whole, but not in part,
and in the manner provided in this Section 312, only by the
Depositary to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary selected or approved by the Company or to a
nominee of such successor Depositary or in the manner specified
in Section 312(c).
(c) If at any time the Depositary for the Securities
represented by one or more Global Securities notifies the Company
that it is unwilling or unable to continue as Depositary of the
Securities or if at any time the Depositary shall no longer be
eligible as provided in the second sentence of the definition of
"Depositary" and a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, the Company
shall promptly execute, and the Trustee shall promptly
authenticate and deliver, Securities in definitive form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities then outstanding in exchange for such
Global Security or Securities, and this Section 312 shall no
longer be applicable to the Securities. In addition, the Company
may at any time and in its sole discretion determine that the
Securities shall no longer be represented by Global Securities.
In such event the Company shall promptly execute, and the
Trustee, upon receipt of a Company Order evidencing such
determination by the Company, shall promptly authenticate and
deliver, Securities in definitive form without coupons, in
authorized denominations and in an aggregate principal amount
equal to the principal amount of the Global Security or
Securities then outstanding in exchange for such Global Security
or Securities and this Section 312 shall no longer be applicable
to the Securities. Upon the exchange of the Global Securities
for such Securities in definitive form without coupons, in
authorized denominations, such Global Securities shall be
cancelled by the Trustee. Such Securities in definitive form
issued in exchange for the Global Securities pursuant to this
Section 312(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are
so registered.
(d) Notwithstanding any other provision hereof to the
contrary, so long as the Securities outstanding are represented
by one or more Global Securities, the Company shall pay or cause
to be paid the principal of, and interest on, such Global
Securities to the Depositary or its nominee of the holder by wire
transfer of immediately available funds on the date such payments
are due.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect and the
Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and dis-
charge of this Indenture, when
(1) no Securities remain Outstanding;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture
pursuant to this Article Four, (i) the obligations of the Company
to the Trustee under Section 607, the obligations of the Company
to any Authenticating Agent under Section 614 and (ii) if the
Company shall have effected a Defeasance pursuant to Article
Twelve, the provisions hereof specified in Section 1202 shall
also survive.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", whenever used herein, means any one of
the following events (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):
(1) default in the payment of the principal of (or
premium, if any, on) any Security at its maturity (whether at
final Stated Maturity or upon repurchase, acceleration, optional
redemption or otherwise); or
(2) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the purchase of Securities, on the
applicable Purchase Date, required to be purchased by the Company
pursuant to an Offer to Purchase under Section 1013 or Section
1015 as to which an offer has been mailed to Holders or the
failure to make such offer as required hereunder; or
(4) default in the performance, or breach, of any
covenant, agreement or warranty of the Company in this Indenture
and the Securities (other than a covenant, agreement or warranty
a default in whose performance or whose breach is elsewhere in
this Section 501 specifically dealt with), and continuance of
such default or breach for a period of 30 days after there has
been given to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25 percent in principal
amount at final Stated Maturity of the Outstanding Securities a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of De-
fault" hereunder; or
(5) a default or defaults under any bond, debenture,
note or other evidence of Debt by the Company or any Significant
Subsidiary (or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Debt by the Company or any Significant Subsidiary)
(other than Non-Recourse Debt of Significant Subsidiaries) if
either (x) such default results from failure to pay principal of
such Debt in excess of $25 million when due after any applicable
grace period or (y) as a result of such default, the maturity of
such Debt has been accelerated prior to its scheduled maturity
and such default has not been cured within the applicable grace
period, and such acceleration has not been rescinded, and the
principal amount of such Debt, together with the principal amount
of any other Debt of the Company and its Significant Subsidiaries
(not including Non-Recourse Debt of the Significant Subsidiaries)
that is in default as to principal, or the maturity of which has
been accelerated, aggregates $25 million or more; or
(6) the entry by a court of one or more judgments or
orders against the Company or any Significant Subsidiary for the
payment of money that in aggregate exceeds $25 million (excluding
the amount thereof covered by insurance or by a bond written by a
Person other than an Affiliate of the Company), which judgments
or orders have not been vacated, discharged or satisfied or
stayed pending appeal within 60 days from the entry thereof,
provided that such a judgment or order shall not be an Event of
Default if such judgment or order does not require any payment by
the Company or any Significant Subsidiary, except to the extent
that such judgment is only against Property that secures Non-
Recourse Debt that is otherwise permitted under this Indenture,
and the Company could, at the expiration of the applicable 60 day
period, after giving effect to such judgement or order and the
consequences thereof, Incur at least $1 of Debt under the
provisions described in Section 1008(a); or
(7) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary case or
proceeding under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state, or foreign
bankruptcy, insolvency, or other similar law or (B) a decree or
order adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under
the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal, State or foreign bankruptcy,
insolvency, or similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary or of any
substantial part of the Property or assets of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation
of the affairs of the Company or any Significant Subsidiary, and
the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(8) (A) the commencement by the Company or any
Significant Subsidiary of a voluntary case or proceeding under
the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable federal, state, or foreign bankruptcy,
insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or (B) the
consent by the Company or any Significant Subsidiary to the entry
of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under
the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable federal, state, or foreign bankruptcy,
insolvency, or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company
or any Significant Subsidiary, or (C) the filing by the Company
or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency or other similar
law, or (D) the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or of any substantial part
of the Property or assets of the Company or any Significant
Subsidiary, or the making by the Company or any Significant
Subsidiary of an assignment for the benefit of creditors, or (E)
the admission by the Company or any Significant Subsidiary in
writing of its inability to pay its debts generally as they
become due, or (F) the taking of corporate action by the Company
or any Significant Subsidiary in furtherance of any such action.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(7) or (8)) occurs and is continuing,
then and in every such case the Trustee or the Holders of not
less than 25 percent in principal amount at Stated Maturity of
the Outstanding Securities may declare the Default Amount of all
the Securities to be due and payable immediately by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such Default Amount shall become
immediately due and payable. If an Event of Default specified in
Section 501(7) or (8) occurs, the Default Amount of the Securi-
ties then Outstanding shall ipso facto become immediately due and
payable without any declaration or other Act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this
Article Five provided, the Holders of a majority in principal
amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities
(without duplication of any amount thereof paid or deposited
pursuant to clause (B) or (C) below),
(B) the Default Amount of (and premium, if any,
on) any Securities that have become due otherwise than by such
declaration of acceleration (including any Securities required to
have been purchased on any Purchase Date pursuant to an Offer to
Purchase made by the Company) and, to the extent that payment of
such interest is lawful, interest thereon at the rate provided by
the Securities (without duplication of any amount thereof paid or
deposited pursuant to clause (A) above or clause (C) below),
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate provided by
the Securities (without duplication of any amount thereof paid or
deposited pursuant to clause (A) or (B) above), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default (other than the non-payment
of the Accreted Value of Securities that have become due solely
by such declaration of acceleration) have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforce-
ment by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal or
Accreted Value of (or premium, if any, on) any Security at the
final Stated Maturity thereof or, with respect to any Security
required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities Accreted Value or principal,
as the case may be, (premiums, if any) and interest, and, to the
extent that payment of such interest shall be legally enforce-
able, interest on any overdue Accreted Value or principal, as the
case may be, (premium, if any) and interest, and on any overdue
interest, at the rate provided by the Securities, and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reason-
able compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the Property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its Property or
assets or its creditors, the Trustee (irrespective of whether the
Accreted Value or principal, as the case may be, (premium, if
any) or interest of the Securities then shall be due and payable
as therein expressed or by declaration or otherwise and irrespec-
tive of whether the Trustee has made any demand on the Company
for the payment of overdue Accreted Value or principal, as the
case may be, (premium, if any) or interest shall be entitled and
empowered, by intervention in such proceeding or otherwise, to
file such proofs of claim and other papers or documents and to
take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee (including
any claim for reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) allowed in
any such proceeding. In particular, the Trustee shall be autho-
rized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trust-
ee, its agents and counsel, and any other amounts due the Trustee
under Section 607. To the extent that payment of any such com-
pensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any amounts due the Trustee under
Section 607 hereof out of the estate in any such proceeding shall
be denied for any reason, payment of the same shall be secured by
a Lien and shall be paid out of any and all distributions,
dividends, money, securities and other properties that the
Holders of the Securities may be entitled to receive in such
proceedings whether in liquidation or under any plan of reorgani-
zation or arrangement or otherwise.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding;
provided that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and
be a member of a creditors or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
Five shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities in respect of principal (and
premium, if any) and interest; and
THIRD: To whosoever may be lawfully entitled
thereto, the remainder, if any.
Section 507. Limitation on Suits.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25 percent in
principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period
by the Holders of a majority in principal amount of the
Outstanding Securities;
it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to
seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the
Holders.
Section 508. Unconditional Right of Holders to Receive Princi-
pal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive full payment of the Accreted Value
or principal, as the case may be, of (and premium, if any) and
(subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in
the case of redemption on the Redemption Date or in the case of
an Offer to Purchase made by the Company and accepted as to such
Security, on the Purchase Date) in accordance with the terms of
this Indenture and the Securities and to institute suit for the
enforcement of any such payment, and such rights shall not be im-
paired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be re-
stored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder or otherwise shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to
the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities 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, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction.
Section 513. Waiver Of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its conse-
quences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security (including any Security that is
required to have been purchased pursuant to an Offer to Purchase
that has been made by the Company), or
(2) in respect of a covenant or provision hereof that
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it shall not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Whether or not therein
expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section 601.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any
such certificates or opinions that 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 but need
not confirm the accuracy of any calculations contained therein.
(c) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(d) 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
(1) this subsection (d) shall not be construed to
limit the effect of subsections (b) or (c) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) 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 a majority in
principal amount of the Outstanding Securities 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; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 602. Notice of Defaults; Notice of Acceleration.
Within 90 days after the occurrence of any Default or Event
of Default, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, notice
of such Default or Event of Default known to the Trustee, unless
such Default or Event of Default shall have been cured or waived;
provided that, except in the case of a default in any payment of
the principal of (or premium, if any) or interest on any Security
and any payment required in connection with a Change of Control
or an Asset Disposition, the Trustee shall be protected in with-
holding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders;
and provided further that in the case of any Default or Event of
Default of the character specified in Section 501(5), no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, re-
quest, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, order, demand or direction of the
Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to reasonable
confidentiality arrangements as may be proposed by the Company)
to examine the books, records and premises of the Company,
personally or by agent or attorneys;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action
taken, suffered or omitted by it and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Secu-
rities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Inden-
ture or of the Securities. The Trustee shall not be accountable
for the use or application by the Company of Securities or the
proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
reasonable compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and dis-
bursements of its agents and counsel) except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee in its individual
capacity and each of its officers, directors, agents and counsel
for, and to hold it harmless against, any loss, damage, claim,
liability or expense incurred without negligence or bad faith on
such Person's part, arising out of or in connection with the
acceptance or administration of this Indenture or the performance
of any of its powers and duties hereunder, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder and complying with any process served
upon the Trustee or any such other Person hereunder.
The Trustee shall have a Lien prior to the Securities with
respect to all Property and funds held or collected by the
Trustee hereunder for any amount owing to it pursuant to this
Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(7)
or Section 501(8), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the servic-
es are intended to constitute expenses of administration under
any applicable Federal or state bankruptcy, insolvency or other
similar law.
The Company's obligations under this Section 607 and any
Lien arising hereunder shall survive the resignation or removal
of the Trustee, the discharge of the Company's obligations
pursuant to Article Twelve, any rejection or termination of the
Indenture under any Federal or state bankruptcy, insolvency or
other similar law or any other termination of this Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall
be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000 and its Corporate Trust Office in the Borough of
Manhattan, The City of New York and shall be subject to
supervision or examination by Federal or State authority. If
such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 609
and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this Section 609, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article Six.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article Six
shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee in accordance with the applica-
ble requirements of Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trust-
ee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public offi-
cer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situat-
ed, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in accordance with the
applicable requirements of Section 611, any Holder who has been a
bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give written notice of each
resignation and each removal of the Trustee and each appointment
of a successor Trustee to all Holders in the manner provided in
Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of any amounts then due under Section
607, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject, nevertheless, to its Lien,
if any, provided for in Section 607. Upon request of any such
successor Trustee, the Company shall execute any and all instru-
ments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corpora-
tion resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provi-
ded that such corporation shall be otherwise qualified and eligi-
ble under this Article Six, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 613. Preferential Collection
of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may from time to time appoint an Authenticating
Agent or Agents that shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer or partial redemption or
partial purchase or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authen-
ticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the re-
quirements of said supervising or examining authority, then for
the purposes of this Section 614, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 614, such Authenticating
Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consoli-
dation to which such Authenticating Agent shall be a party, or
any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent. In case any Securities shall have
been authenticated, but not delivered, by the Authenticating
Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Authenticating Agent may
adopt such authentication and deliver the Securities so authen-
ticated with the same effect as if such successor Authenticating
Agent had itself authenticated such Securities.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accord-
ance with the provisions of this Section 614, the Trustee may
appoint a successor Authenticating Agent that shall be acceptable
to the Company and shall give notice of such appointment in the
manner provided in Section 106, to all Holders as their names and
addresses appear in the Security Register. Any successor Authen-
ticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section
614.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment is made pursuant to this Section 614, the
Securities may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities described in the within-
mentioned Indenture.
Dated: IBJ SCHRODER BANK & TRUST
COMPANY
as Trustee
By ,
As Authenticating Agent
By ,
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as
to the names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the May 15 following the Issue Date, the Trustee shall
transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the
Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the
Commission and with the Company. The Company shall notify the
Trustee in writing when the Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc. Only on Certain
Terms.
The Company shall not, in any transaction or series of
transactions, consolidate with or merge into any other Person, or
sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of the Property and assets of the Company to
any other Person, unless:
(i) either (a) the Company shall be the continuing
corporation or (b) the corporation (if other than the Company)
formed by such consolidation or into which the Company is merged,
or the Person that acquires, by sale, assignment, conveyance,
transfer, lease or disposition, all or substantially all of the
Property and assets of the Company (such corporation or Person,
the "Surviving Entity"), shall be a corporation organized and
validly existing under the laws of the United States of America,
any political subdivision thereof or any state thereof or the
District of Columbia, and shall expressly assume, by a
supplemental indenture, the due and punctual payment of the
principal of (and premium, if any) and interest on all the
Securities and the performance of the Company's covenants and
obligations under this Indenture;
(ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Debt Incurred or
anticipated to be Incurred in connection with or in respect of
such transaction or series of transactions), no Default or Event
of Default shall have occurred and be continuing or would result
therefrom;
(iii) immediately after giving effect to any such
transaction or series of transactions on a pro forma basis
(including, without limitation, any Debt Incurred or anticipated
to be Incurred in connection with or in respect of such transac-
tion or series of transactions) as if such transaction or series
of transactions had occurred on the first day of the
determination period, the Company (or the Surviving Entity if the
Company is not continuing) would be permitted to Incur $1.00 of
additional Debt pursuant to Section 1008(a); and
(iv) immediately after giving effect to such
transaction or series of transactions on a pro forma basis
(including, without limitation, any Debt Incurred or anticipated
to be Incurred in connection with or in respect of such
transaction or series of transactions) (without giving effect to
the fees and expenses incurred in respect of such transaction),
the Company (or the Surviving Entity if the Company is not
continuing) shall have a Net Worth equal to or greater than the
Net Worth of the Company immediately prior to such transaction.
In connection with any consolidation, merger, sale, assign-
ment, conveyance, transfer, lease or other disposition contem-
plated by the foregoing provisions of this Section 801, the
Company shall deliver, or cause to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, conveyance, assignment,
transfer, lease or other disposition and the indenture supplemen-
tal hereto in respect thereof (to the extent required under
clause (i) of this Section 801) comply with the requirements of
this Indenture. Each such Officers' Certificate shall set forth
the ability to Incur Debt in accordance with clause (iii) of
Section 801.
None of the Company, any of its Restricted Subsidiaries or
any Eligible Joint Ventures may merge with or into, or be
consolidated with, an Unrestricted Subsidiary of the Company,
except to the extent that such Unrestricted Subsidiary has been
designated a Restricted Subsidiary as provided in this Indenture
in advance of or in connection with such merger.
For all purposes of this Indenture and the Securities
(including this Section 801 and Sections 1008, 1009 and 1012),
Subsidiaries of any Surviving Entity shall, upon such transaction
or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to this Indenture
and all Debt, and all Liens on Property or assets, of the Surviv-
ing Entity and its Subsidiaries that was not Debt, or were not
Liens on Property or assets, of the Company and its Subsidiaries
immediately prior to such transaction or series of transactions
shall be deemed to have been Incurred upon such transaction or
series of transactions.
Section 802. Successor Substituted.
Upon any transaction or series of transactions that are of
the type described in, and are effected in accordance with,
Section 801, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; and when a
Surviving Person duly assumes all of the obligations and cove-
nants of the Company pursuant to this Indenture and the Securi-
ties, except in the case of a lease, the predecessor Person shall
be relieved of all such obligations.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Hold-
ers.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, may, and subject to Se-
ction 903, the Trustee, at any time and from time to time, shall,
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Securities in
addition to or in place of the certificated Securities; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is not Outstanding any
Security created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision; or
(6) to evidence and provide for the acceptance of
appointment under this Indenture by a successor Trustee; or
(7) to secure the Securities pursuant to the
requirements of Section 1012 or otherwise; or
(8) to cure any ambiguity, to correct or supplement
any provision herein that may be defective or inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture (8),
provided that such actions pursuant to this clause shall not ad-
versely affect the interests of the Holders; or
(9) to comply with any requirements of the Commission
in order to effect and maintain the qualification of this
Indenture under the Trust Indenture Act.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, may, and (subject to
Section 903) the Trustee shall, enter into an indenture or inden-
tures supplemental hereto, in form satisfactory to the Trustee,
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this
Indenture; provided that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of or
any installment of interest on, any Security, or reduce the
principal amount thereof at or the rate of interest thereon or
any premium payable thereon, reduce the rate or extend the time
of accretion of original issue discount thereon beyond July 15,
1997 or the time of payment of any cash interest thereon, reduce
any amount payable on redemption or purchase thereof, or reduce
the Default Amount that would be due and payable on acceleration
of the Stated Maturity thereof pursuant to Section 502, or change
the place of payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify the obligations of the Company to make
Offers to Purchase from the Excess Proceeds of Asset Dispositions
or upon a Change of Control or to modify the definitions related
thereto, or
(4) subordinate a right of payment, or otherwise
subordinate, the Securities to any other indebtedness,
(5) modify any provisions of this Indenture relating
to the calculation of Accreted Value, or
(6) modify any of the provisions of this Section 902,
Section 513 or Section 1020, except to increase any such percent-
age or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
After a supplemental indenture under this Section becomes
effective, the Company shall mail to the Holders affected thereby
a notice briefly describing the supplemental indenture. Any
failure of the Company to mail such notice, or any default
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
In connection with any supplemental indenture or waiver
under this Article Nine, the Company may, but shall not be
obligated to, offer to any Holder who consents to such supplemen-
tal indenture, or to all Holders, consideration for such Holder's
consent to such supplemental indenture.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, unless it makes a change described in any
of clauses (1) through (6) of Section 902, in which case, the
supplemental indenture shall bind only each Holder of a Security
who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same Debt as the
consenting Holder's Security; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment
of principal and premium of and interest on a Security, on or
after the respective dates set for such amounts to become due and
payable, or to bring suit for the enforcement of any such payment
on or after such respective dates.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article Nine shall conform to the requirements of the Trust
Indenture Act.
Section 906. Reference in Securities to Supplemental Inden-
tures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article Nine may,
and shall if required by the Trustee, bear a notation in form ap-
proved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
Any failure to make the appropriate notation on a new Security
shall not affect the validity of such Security.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accor-
dance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
In the event any such notice or demands are so made or served on
the Trustee, the Trustee shall promptly forward copies thereof to
the Company.
The Company may also from time to time designate one or
more other offices or agencies (in or outside the Borough of
Manhattan, The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.
The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby
initially designates the Corporate Trust Office of the Trustee as
such office of the Company.
Section 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it shall, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents,
it shall, prior to each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1003, that such Paying Agent shall
(i) comply with the provisions of the Trust Indenture Act
applicable to it as Paying Agent, (ii) give the Trustee notice of
any default by the Company (or other obligor upon the Securities)
in the making of any payment of principal of (and premium, if
any) or interest in respect of the Securities and (iii) during
the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in
respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent as such.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security
and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided that the Trustee or such
Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The
City of New York, or mail to such Holder, or both, notice that
such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
Section 1004. Existence.
Subject to Article Eight, the Company shall do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and
statutory) and material franchises; provided that the Company
shall not be required to preserve any such right or franchise if
the Board of Directors in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof does not
materially adversely affect the Holders.
Section 1005. Maintenance of Properties.
The Company shall cause all material properties used or
useful in the conduct of its business or the business of any
Restricted Subsidiary and any Eligible Joint Venture to be main-
tained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided that nothing in this Section 1005 shall prevent
the Company from discontinuing the operation or maintenance of
any of such material or properties or, subject to the provisions
of Section 1015, disposing of any of them if such discontinuance
or disposal is, as determined by the Company in good faith,
desirable in the conduct of its business or the business of any
Restricted Subsidiary and does not materially adversely affect
the Holders, provided that the Restricted Subsidiaries and the
Eligible Joint Ventures of the Company shall not be required to
comply with the forgoing provisions of this Section 1005 if they
are prevented or restricted in doing so by the terms of any loan
or financing agreement, any charter document, partnership or
joint venture agreement or any other agreement or instrument, all
of which are expressly acknowledged to take precedence over the
terms hereof.
Section 1006. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any of its Restricted Subsidiaries or upon
the income, profits or property of the Company or any of its
Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a
Lien upon the property of the Company or any of its Restricted
Subsidiaries; provided that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have
been accrued to the extent required by GAAP.
Section 1007. Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiar-
ies and the Eligible Joint Ventures to, keep at all times all of
their Properties that are of an insurable nature insured against
loss or damage with insurers believed by the Company to be re-
sponsible to the extent that Property of similar character is
usually so insured by Persons similarly situated and owning like
Properties in accordance with good business practice. The
Company shall, and shall cause its Restricted Subsidiaries and
the Eligible Joint Ventures to, use the proceeds from any such
insurance policy to repair, replace or otherwise restore all
material Properties to which such proceeds relate, provided that
the Company shall not be required to repair, replace or otherwise
restore any such material Property if the Company in good faith
determines that such inaction is desirable in the conduct of the
business of the Company or any Restricted Subsidiary and does not
materially adversely affect the Holders, and provided further
that the Company (only in respect of agreements governing its
Non-Recourse Debt), the Restricted Subsidiaries and the Eligible
Joint Ventures of the Company shall not be required to apply
insurance proceeds to repair, replace or restore any material
Property if they are prevented or restricted in doing so by the
terms of any loan or financing agreement, any charter document,
partnership or joint venture agreement or any other agreement or
instrument, all of which are expressly acknowledged to take
precedence over the terms hereof.
The Company may, and may permit its Restricted Subsidiaries
and Eligible Joint Ventures to, adopt such other plan or method
of protection, in lieu of or supplemental to insurance with
insurers, whether by the establishment of an insurance fund or
reserve to be held and applied to make good losses from
casualties, or otherwise, conforming to the system of
self-insurance maintained by Persons similarly situated and
owning like Properties and which does not materially adversely
affect the Holders, as may be determined by the Company in good
faith.
Section 1008. Limitation on Debt.
(a) The Company shall not Incur any Debt, including
Acquisition Debt, unless, after giving effect to the Incurrence
of such Debt and the receipt and application of the proceeds
therefrom, the Fixed Charge Ratio of the Company would be equal
to or greater than 2.0 to 1.
(b) Notwithstanding the provisions of Section 1008(a), the
Company may Incur each and all of the following: (i) Company
Refinancing Debt, (ii) Debt of the Company to any of its
Restricted Subsidiaries or any Eligible Joint Venture that is ex-
pressly subordinated in right of payment to the Securities,
provided that any transfer of such Debt by a Restricted Subsid-
iary or an Eligible Joint Venture (other than to another
Restricted Subsidiary or another Eligible Joint Venture), or any
transfer of the Company's ownership interest, or a portion
thereof, in such Restricted Subsidiary or such Eligible Joint
Venture or the interest, or a portion thereof, of Kiewit in a
Permitted Joint Venture or an Eligible Joint Venture (which
transfer has the effect of causing such Restricted Subsidiary or
such Eligible Joint Venture to cease to be a Restricted
Subsidiary or an Eligible Joint Venture, as the case may be),
shall be deemed to be an Incurrence of Debt that is subject to
the provisions of this Section 1008 other than this clause (ii),
(iii) Debt in an aggregate principal amount not to exceed $50
million outstanding at any one time may be issued under or in re-
spect of Permitted Working Capital Facilities, (iv) Non-Recourse
Debt Incurred in respect of a Permitted Facility in which the
Company has a direct interest, (v) Debt in respect of Currency
Protection Agreements or Interest Rate Protection Agreements,
(vi) Purchase Money Debt, provided that the amount of such Debt
(net of any original issue discount) does not exceed 90% of the
fair market value of the Property acquired, (vii) the Securities
and other Debt outstanding as of the Issue Date of the Securities
(other than Debt to the extent that it is extinguished, retired,
defeased or repaid in connection with the original issuance of
the Securities), including Debt that is Incurred in respect of
interest or discount on such Debt (or Redeemable Stock issued as
dividends in respect of Redeemable Stock) pursuant to the terms
of the agreement or instrument that governs such Debt (or such
Redeemable Stock) as in effect on the Issue Date of the
Securities and (viii) Debt in an aggregate principal amount not
to exceed $50 million outstanding at any one time.
Section 1009. Limitation on Subsidiary Debt.
(a) The Company shall not permit any of its Restricted Sub-
sidiaries or any Eligible Joint Venture, to Incur any Debt.
(b) Notwithstanding the provisions of Section 1009(a), each
and all of the following Debt may be Incurred by a Restricted
Subsidiary or an Eligible Joint Venture: (i) Debt outstanding as
of the Issue Date of the Securities, (ii) Debt owed by a
Restricted Subsidiary or an Eligible Joint Venture to the Company
or another Restricted Subsidiary of the Company or another
Eligible Joint Venture that either directly or indirectly owns
all or a portion of the Company's interest in, or directly or
indirectly is owned by, such Restricted Subsidiary or such
Eligible Joint Venture, as the case may be, and that does not own
any Permitted Facility or a direct or indirect interest therein,
other than the Permitted Facility or any other Permitted Facility
that is located on the same localized geothermal reservoir or a
direct or indirect interest therein owned by such Restricted
Subsidiary or Eligible Joint Venture, (iii) Non-Recourse Debt In-
curred in respect of a Permitted Facility in which such Restri-
cted Subsidiary or such Eligible Joint Venture has a direct or
indirect interest (which may include Construction Financing pro-
vided by the Company to the extent permitted under Section 1010
as a "Permitted Investment"), (iv) Subsidiary Refinancing Debt,
(v) Acquired Debt, (vi) Debt in respect of Currency Protection
Agreements or Interest Rate Protection Agreements and (vii)
Permitted Funding Company Loans.
Section 1010. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to,
directly or indirectly, make any Restricted Payment unless at the
time of such Restricted Payment and after giving effect thereto
(a) no Event of Default and no event that, after the giving of
notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing, (b) the Company could
Incur at least $1 of Debt under Section 1008(a) and (c) the
aggregate amount of all Restricted Payments made by the Company,
its Restricted Subsidiaries and the Eligible Joint Ventures (the
amount so made, if other than in cash, to be determined in good
faith by the Chief Financial Officer, as evidenced by an
Officers' Certificate, or, if more than $15 million, by the Board
of Directors, as evidenced by a Board resolution) after the Issue
Date of the Securities, is less than the sum (without duplica-
tion) of (i) 50% of the Adjusted Consolidated Net Income of the
Company for the period (taken as one accounting period) beginning
on the first day of the first fiscal quarter that begins after
the Issue Date of the Securities and ending on the last day of
the fiscal quarter immediately prior to the date of such calcula-
tion, provided that if throughout any fiscal quarter within such
period the Ratings Categories applicable to the Securities are
rated Investment Grade by S&P and Moody's (or if both do not make
a rating of the Securities publicly available, an equivalent
Rating Category is made publicly available by another Rating
Agency), then 75% (instead of 50%) of the Adjusted Consolidated
Net Income (if more than zero) with respect to such fiscal
quarter shall be included pursuant to this clause (i), and pro-
vided further that if Adjusted Consolidated Net Income for such
period is less than zero, then minus 100% of the amount of such
net loss, plus (ii) 100% of the aggregate net cash proceeds re-
ceived by the Company from and after the Issue Date of the
Securities from (A) the issuance and sale (other than to a
Restricted Subsidiary or an Eligible Joint Venture) of its
Capital Stock (excluding Redeemable Stock, but including Capital
Stock other than Redeemable Stock issued upon conversion of, or
in exchange for Redeemable Stock or securities other than its
Capital Stock), (B) the issuance and sale or the exercise of war-
rants, options and rights to purchase its Capital Stock (other
than Redeemable Stock) and (C) the issuance and sale of convert-
ible Debt upon the conversion of such convertible Debt into
Capital Stock (other than Redeemable Stock), but excluding the
net proceeds from the issuance, sale, exchange, conversion or
other disposition of its Capital Stock (I) that is convertible
(whether at the option of the Company or the holder thereof or
upon the happening of any event) into (x) any security other than
its Capital Stock or (y) its Redeemable Stock or (II) that is
Capital Stock referred to in clauses (ii) and (iii) of the
definition of "Permitted Payment", plus (iii) the net reduction
in Investments of the types specified in clauses (iv) and (v) of
the definition of "Restricted Payment" that result from payments
of interest on Debt, dividends, or repayment of loans or advanc-
es, the proceeds of the sale or disposition of the Investment or
other return of the amount of the original Investment to the
Company, the Restricted Subsidiary or the Eligible Joint Venture
that made the original Investment from the Person in which such
Investment was made, provided that (x) the aggregate amount of
such payments shall not exceed the amount of the original Invest-
ment by the Company or such Restricted Subsidiary that reduced
the amount available pursuant to this clause (c) for making
Restricted Payments and (y) such payments may be added pursuant
to this clause (iii) only to the extent such payments are not
included in the calculation of Adjusted Consolidated Net Income,
provided further that if Investments of the types specified in
clauses (iv) and (v) of the Definition of "Restricted Payment"
have been made in any Person and such Person thereafter becomes a
Restricted Subsidiary or an Eligible Joint Venture, then the
aggregate amount of such Investment (to the extent that they have
reduced the amount available pursuant to this clause (c) for
making Restricted Payments), net of the amounts previously added
pursuant to this clause (iii), may be added to the amount avail-
able for making Restricted Payments. The foregoing clause (c)
shall not prevent the payment of any dividend within 60 days
after the date of its declaration if such dividend could have
been made on the date of its declaration without violation of the
provisions of this Section 1010(a).
(b) None of the Company, any of its Restricted Subsid-
iaries or any Eligible Joint Venture shall be deemed to have made
an Investment at the time that a Person that is a Restricted
Subsidiary of the Company or an Eligible Joint Venture ceases to
be a Restricted Subsidiary or an Eligible Joint Venture (other
than as a result of a Restricted Subsidiary being designated as
an Unrestricted Subsidiary), although any subsequent Investment
made by the Company, its Restricted Subsidiaries and Eligible
Joint Ventures in such Person shall be Investments that shall be
subject to the foregoing paragraph unless and until such time as
such Person becomes a Restricted Subsidiary or an Eligible Joint
Venture. Notwithstanding the foregoing, (i) the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary, in the
manner provided in the definition of "Unrestricted Subsidiary,"
shall be an Investment that shall be subject to the foregoing
paragraph and (ii) the transfer of the Company's interest (or
portion thereof) in an entity that has been deemed to be an
Eligible Joint Venture directly or indirectly to an Unrestricted
Subsidiary shall be an Investment (to the extent of the interest
transferred) that shall be subject to the foregoing paragraph.
Section 1011. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to,
directly or indirectly, conduct any business or enter into or
permit to exist any transaction or series of related transactions
(including, but not limited to, the purchase, sale or exchange of
Property, the making of any Investment, the giving of any
Guarantee or the rendering of any service) with any Affiliate of
the Company, such Restricted Subsidiary or such Eligible Joint
Venture, as the case may be, unless (i) such business,
transaction or series of related transactions is in the best
interest of the Company, such Restricted Subsidiary or such
Eligible Joint Venture, (ii) such business, transaction or series
of related transactions is on terms no less favorable to the
Company, such Restricted Subsidiary or such Eligible Joint
Venture than those that could be obtained in a comparable arm's
length transaction with a Person that is not such an Affiliate
and (iii) with respect to such business, transaction or series of
related transactions that has a fair market value or involves
aggregate payments equal to, or in excess of, $10 million, such
business, transaction or series of transactions is approved by a
majority of the Board of Directors (including a majority of the
Disinterested Directors), which approval is set forth in a Board
Resolution delivered to the Trustee certifying that, in good
faith, the Board of Directors believes that such business,
transaction or series of transactions complies with clauses (i)
and (ii) above.
Section 1012. Limitation on Liens.
The Company may not Incur any Debt that is secured, directly
or indirectly, with, and the Company shall not, and shall not
permit any of its Restricted Subsidiaries or any Eligible Joint
Venture to, grant a Lien on the Property of the Company, its
Restricted Subsidiaries or any Eligible Joint Venture now owned
or hereafter acquired unless contemporaneous therewith or prior
thereto the Securities are equally and ratably secured except for
(i) any such Debt secured by Liens existing on the Property of
any entity at the time such Property is acquired by the Company,
any of its Restricted Subsidiaries or any Eligible Joint Venture,
whether by merger, consolidation, purchase of such Property or
otherwise, provided that such Liens (x) are not created, incurred
or assumed in contemplation of such Property being acquired by
the Company, any of its Restricted Subsidiaries or any Eligible
Joint Venture and (y) do not extend to any other Property of the
Company, any of its Restricted Subsidiaries or any Eligible Joint
Venture, (ii) any other Debt that is required by the terms
thereof to be equally and ratably secured as a result of the
Incurrence of Debt that is permitted to be secured pursuant to
another clause of this Section 1012, (iii) Liens that are granted
in good faith to secure Debt (A) contemplated by clause (iv) of
Section 1008(b) or (B) contemplated by clauses (ii), (iii) and
(vi) of Section 1009(b), provided that, in the case of Debt owed
to a Person other than the Company or a Restricted Subsidiary,
the President or Chief Financial Officer of the Company
determines in good faith, as evidenced by an Officers'
Certificate, that such Liens are required in order to effect such
financing and are not materially more restrictive, taken as a
whole, than Liens, taken as a whole, customarily accepted (or in
the absence of industry custom, reasonably acceptable) in
comparable financings or comparable transactions in the
applicable jurisdiction, (iv) Liens existing on the Issue Date of
the Securities, (v) Liens incurred to secure Debt incurred by the
Company as permitted by clause (vi) of Section 1008(b), provided
that such Liens may not cover any Property other than that being
purchased, (vi) Liens on any Property of the Company securing
Permitted Working Capital Facilities, Guarantees thereof and any
Interest Rate Protection Agreements or Currency Protection Agree-
ments, provided that such Liens may not extend to the Capital
Stock owned by the Company in any Subsidiary of the Company or
any Joint Venture, (vii) Liens in respect of extensions, renew-
als, refundings or refinancings of any Debt secured by the Liens
referred to in the foregoing clauses, provided that the Liens in
connection with such renewal, extension, refunding or refinancing
shall be limited to all or part of the specific property that was
subject to the original Lien, (viii) Liens incurred to secure
obligations in respect of letters of credit, bankers' accep-
tances, surety, bid, operating and performance bonds, performance
guarantees or other similar instruments or obligations (or reim-
bursement obligations with respect thereto)(in each case, to the
extent incurred in the ordinary course of business), (ix) any
Lien arising by reason of (A) any judgment, decree or order of
any court, so long as such Lien is being contested in good faith
and is appropriately bonded, and any appropriate legal proceed-
ings that may have been duly initiated for the review of such
judgment, decree or order have not been finally terminated or the
period within which such proceedings may be initiated has not
expired, (B) taxes, duties, assessments, imposts or other govern-
mental charges that are not yet delinquent or are being contested
in good faith, (C) security for payment of worker's compensation
or other insurance, (D) security for the performance of tenders,
contracts (other than contracts for the payment of money) or
leases, (E) deposits to secure public or statutory obligations,
or to secure permitted contracts for the purchase or sale of any
currency entered into in the ordinary course of business, (F) the
operation of law in favor of carriers, warehousemen, landlords,
mechanics, materialmen, laborers, employees or suppliers,
incurred in the ordinary course of business for sums that are not
yet delinquent or are being contested in good faith by negotia-
tions or by appropriate proceedings that suspend the collection
thereof, (G) easements, rights-of-way, zoning and similar
covenants and restrictions and other similar encumbrances or
title defects that do not in the aggregate materially interfere
with the ordinary conduct of the business of the Company, any of
its Restricted Subsidiaries or any Eligible Joint Venture or (H)
leases and subleases of real property that do not interfere with
the ordinary conduct of the business of the Company, any of its
Restricted Subsidiaries or any Eligible Joint Venture and that
are made on customary and usual terms applicable to similar prop-
erties, or (x) Liens, in addition to the foregoing, that secure
obligations not in excess of $5 million in the aggregate.
Section 1013. Purchase of Securities Upon a Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder of the Securities shall have the right to require that the
Company repurchase such Holder's Securities at a purchase price
in cash equal to 101% of the Accreted Value thereof on the date
of purchase plus accrued interest, if any, to the date of pur-
chase.
(b) Within 30 days following a Change of Control, the
Company 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 Company to purchase
such Holder's Securities at the purchase price described in
Section 1013(a) (the "Change of Control Offer"), (2) the circum-
stances 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), (3) the purchase date (which shall be not
earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Change of Control Purchase Date"), (4)
that original issue discount on any Security not tendered or
purchased shall continue to accrete until January 15, 1997, and
thereafter interest on any such Security shall continue to ac-
crue, (5) any Security properly tendered pursuant to the Change
of Control Offer shall cease to accrete original issue discount
or accrue interest, as the case may be, after the Change of
Control Purchase Date (assuming sufficient moneys for the
purchase thereof are deposited with the Trustee), (6) that
Holders electing to have a Security purchased pursuant to a
Change of Control Offer shall be required to surrender the
Security, with the form entitled "Option of Holder To Elect Pur-
chase" 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 fifth Business Day prior to the Change of Con-
trol Purchase Date, (7) that a Holder shall be entitled to with-
draw such Holder's 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 Change of Control Purchase 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 his
election to have such Securities purchased and (8) that Holders
that elect to have their Securities purchased only in part shall
be issued new Securities having a principal amount equal to the
portion of the Securities that were surrendered but not tendered
and purchased.
On the Change of Control Purchase Date, the Company shall
(i) accept for payment all Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit
with the Trustee money sufficient to pay the purchase price of
all Securities or portions thereof so tendered for purchase and
(iii) deliver or cause to be delivered to the Trustee the
Securities properly tendered together with an Officers'
Certificate identifying the Securities or portions thereof
tendered to the Company for purchase. The Trustee shall promptly
mail, to the Holders of the Securities properly tendered and pur-
chased, payment in an amount equal to the purchase price, and
promptly authenticate and mail to each Holder a new Security
having a principal amount equal to any portion of such Holder's
Securities that were surrendered but not tendered and purchased.
The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of
Control Purchase Date.
If the Company is prohibited by applicable law from making
the Change of Control Offer or purchasing Securities thereunder,
the Company need not make a Change of Control Offer pursuant to
this Section 1013 for so long as such prohibition is in effect.
The Company shall comply with all applicable tender offer
rules, including, without limitation, Rule 14e-1 under the
Exchange Act, in connection with a Change of Control Offer.
Section 1014. Limitation on Dividends and Other Payment Restric-
tions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to, create
or cause to become, or as a result of the acquisition of any
Person or Property, or upon any Person becoming a Restricted
Subsidiary or an Eligible Joint Venture, remain subject to, any
consensual encumbrance or consensual restriction of any kind on
the ability of any Restricted Subsidiary or any Eligible Joint
Venture to (a) pay dividends or make any other distributions per-
mitted by applicable law on any Capital Stock of such Restricted
Subsidiary or such Eligible Joint Venture owned by the Company,
any other Restricted Subsidiary or any other Eligible Joint
Venture, (b) make payments in respect of any Debt owed to the
Company, any other Restricted Subsidiary of the Company or any
Eligible Joint Venture, (c) make loans or advances to the Company
or to any other Restricted Subsidiary of the Company or any other
Eligible Joint Venture that is directly or indirectly owned by
such Restricted Subsidiary or such Eligible Joint Venture or (d)
transfer any of its Property to the Company or to any other
Restricted Subsidiary or any other Eligible Joint Venture that
directly or indirectly owns or is owned by such Restricted
Subsidiary or such Eligible Joint Venture, other than those
encumbrances and restrictions created or existing (i) on the
Issue Date of the Securities, (ii) pursuant to this Indenture,
(iii) in connection with the Incurrence of any Debt permitted
under the provisions described in clause (iii) of Section
1009(b), provided that, in the case of Debt owed to Persons other
than the Company, its Restricted Subsidiaries and any Eligible
Joint Venture, the President or the Chief Financial Officer of
the Company determines in good faith, as evidenced by an
Officers' Certificate, that such encumbrances or restrictions are
required to effect such financing and are not materially more re-
strictive, taken as a whole, on the ability of the applicable
Restricted Subsidiary or the applicable Eligible Joint Venture to
make the payments, distributions, loans, advances or transfers
referred to in clauses (a) through (d) of this Section 1014 than
encumbrances and restrictions, taken as a whole, customarily ac-
cepted (or, in the absence of any industry custom, reasonably
acceptable) in comparable financings or comparable transactions
in the applicable jurisdiction, (iv) in connection with the
execution and delivery of an electric power or thermal energy
purchase contract, or other contract related to the output or
product of, or services rendered by a Permitted Facility, to
which such Restricted Subsidiary or such Eligible Joint Venture
is the supplying party or other contracts with customers, sup-
pliers and contractors to which such Restricted Subsidiary or
such Eligible Joint Venture is a party and where such Restricted
Subsidiary or such Eligible Joint Venture is engaged, directly or
indirectly, in the development, design, engineering, procurement,
construction, acquisition, ownership, management or operation of
such Permitted Facility, provided that the President or the Chief
Financial Officer of the Company determines in good faith, as
evidenced by an Officers' Certificate, that such encumbrances or
restrictions are required to effect such contracts and are not
materially more restrictive, taken as a whole, on the ability of
the applicable Restricted Subsidiary or the applicable Eligible
Joint Venture to make the payments, distributions, loans,
advances or transfers referred to in clauses (a) through (d) of
this Section 1014 than encumbrances and restrictions, taken as a
whole, customarily accepted (or, in the absence of any industry
custom, reasonably acceptable) in comparable financings or
comparable transactions in the applicable jurisdiction, (v) in
connection with any Acquired Debt, provided that such encumbrance
or restriction was not incurred in contemplation of such Person
becoming a Restricted Subsidiary or an Eligible Joint Venture and
provided further that such encumbrance or restriction does not
extend to any other Property of such Person at the time it became
a Restricted Subsidiary or an Eligible Joint Venture, (vi) in
connection with the Incurrence of any Debt permitted under clause
(iv) of Section 1009(b), provided that, in the case of Debt owed
to Persons other than the Company and its Restricted Subsid-
iaries, the President or the Chief Financial Officer of the
Company determines in good faith, as evidenced by an Officers'
Certificate, that such encumbrances or restrictions taken as a
whole are not materially more restrictive than the encumbrances
and restrictions applicable to the Debt and/or equity being
exchanged or refinanced, (vii) customary non-assignment provi-
sions in leases or other contracts entered into in the ordinary
course of business of the Company, any Restricted Subsidiary or
any Eligible Joint Venture, (viii) any restrictions imposed purs-
uant to an agreement entered into for the sale or disposition of
all or substantially all of the Capital Stock or Property of any
Restricted Subsidiary or Joint Venture that apply pending the
closing of such sale or disposition, (ix) in connection with
Liens on the Property of such Restricted Subsidiary or such
Eligible Joint Venture that are permitted by Section 1012 but
only with respect to transfers referred to in clause (d) of this
Section 1014 or (x) in connection with the Incurrence of any Debt
permitted under clause (ii) of Section 1009(b).
Section 1015. Limitation on Dispositions.
(a) Subject to the provisions of Article Eight, the
Company shall not make and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to make, any Asset
Disposition unless (i) the Company, the Restricted Subsidiary or
the Eligible Joint Venture, as the case may be, receives
consideration at the time of each such Asset Disposition at least
equal to the fair market value of the Property or securities sold
or otherwise disposed of (to be determined in good faith by the
Chief Financial Officer, as evidenced by an Officers' Certifi-
cate, or, if more than $15 million, by the Board of Directors, as
evidenced by a Board resolution), (ii) at least 85% of such
consideration is received in cash or Cash Equivalents or, if less
than 85%, the remainder of such consideration consists of
Property related to the business of the Company as described in
the first sentence of Section 1022, and (iii) unless otherwise
required under the terms of Senior Debt, at the Company's
election, the Net Cash Proceeds are either (A) invested in the
business of the Company, any of its Restricted Subsidiaries or
any Eligible Joint Venture or (B) applied to the payment of any
Debt of the Company or of any of its Restricted Subsidiaries or
any Eligible Joint Venture (or as otherwise required under the
terms of such Debt), provided that, no such payment of Debt
(x) under Permitted Working Capital Facilities or any other
revolving credit agreement shall count for this purpose unless
the related loan commitment, standby facility or the like shall
be permanently reduced by an amount equal to the principal amount
so repaid and (y) owed to the Company, a Restricted Subsidiary
thereof or an Eligible Joint Venture shall count for this pur-
pose, provided further that such investment or such payment, as
the case may be, must be made within 365 days from the later of
the date of such Asset Disposition or the receipt by the Company,
such Restricted Subsidiary or such Eligible Joint Venture of the
Net Cash Proceeds related thereto. Any Net Cash Proceeds from
Asset Dispositions that are not applied as provided in clause (A)
or (B) of the preceding sentence shall constitute "Excess Pro-
ceeds." Excess Proceeds shall be applied, as described below, to
make an offer (an "Excess Proceeds Offer") to purchase Securities
at a purchase price equal to 100% of Accreted Value thereof, plus
accrued interest, if any, to the date of purchase.
(b) Notwithstanding the provisions of Section 1015(a),
the Company, its Restricted Subsidiaries and the Eligible Joint
Ventures may exchange with other Persons (i) Property that con-
stitutes a Restricted Subsidiary or an Eligible Joint Venture for
Property that constitutes a Restricted Subsidiary or an Eligible
Joint Venture, (ii) Property that constitutes a Restricted
Subsidiary or an Eligible Joint Venture for Property that does
not constitute a Restricted Subsidiary or an Eligible Joint Ven-
ture, (iii) Property that does not constitute a Restricted Sub-
sidiary or an Eligible Joint Venture for Property that does not
constitute a Restricted Subsidiary or an Eligible Joint Venture
and (iv) Property that does not constitute a Restricted
Subsidiary or an Eligible Joint Venture for Property that consti-
tutes a Restricted Subsidiary or an Eligible Joint Venture,
provided that in each case the fair market value of the Property
received is at least equal to the fair market value of the
Property exchanged as determined in good faith by the Chief
Financial Officer, as evidenced by an Officers' Certificate, or,
if more than $25 million, by the Board of Directors, as evidenced
by a Board resolution, provided that the Investment in the
Property received in the exchanges described in clauses (ii) and
(iii) of the prior sentence shall be subject to Section 1010.
Notwithstanding anything in the foregoing to the contrary, the
Company may not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, make an Asset
Disposition of any of their interest in, or Property of, any of
the three geothermal facilities located together at the Naval
Weapons Center at China Lake, California, sometimes referred to
as the "Coso Project," other than for consideration consisting
solely of cash.
(c) To the extent that any or all of the Net Cash Pro-
ceeds of any Foreign Asset Disposition are prohibited from (or
delayed in) being repatriated to the United States by applicable
local law, the portion of such Net Cash Proceeds so affected
shall not be required to be applied at the time provided above
but may be retained by any Restricted Subsidiary or any Eligible
Joint Venture so long, but only so long, as the applicable local
law does not permit (or delays) repatriation to the United
States. If such Net Cash Proceeds are transferred by the Re-
stricted Subsidiary or Eligible Joint Venture that conducted the
Foreign Asset Disposition to another Restricted Subsidiary or
Eligible Joint Venture, the Restricted Subsidiary or Eligible
Joint Venture receiving such Net Cash Proceeds must not be
directly or indirectly obligated on any Debt owed to any Person
other than the Company. The Company shall take or cause such Re-
stricted Subsidiary or such Eligible Joint Venture to take all
actions required by the applicable local law to permit such repa-
triation promptly. Once repatriation of any of such Net Cash
Proceeds is permitted under the applicable local law, repatria-
tion shall be effected immediately and the repatriated Net Cash
Proceeds shall be applied in the manner set forth in this Section
1015(c) as if such Asset Disposition had occurred on the date of
such repatriation. In addition, if the Chief Financial Officer
determines, in good faith, as evidenced by an Officers'
Certificate, that repatriation of any or all of the Net Cash Pro-
ceeds of any Foreign Asset Disposition would have a material
adverse tax consequence to the Company, the Net Cash Proceeds so
affected may be retained outside of the United States by the
applicable Restricted Subsidiary or the applicable Eligible Joint
Venture for so long as such material adverse tax consequence
would continue. Notwithstanding the foregoing provisions of this
paragraph to the contrary, if applicable local law prohibits (or
delays) the repatriation of Net Cash Proceeds of a Foreign Asset
Disposition but such local law does not prohibit the application
of such Net Cash Proceeds pursuant to the first sentence of this
Section 1015(a), the Company may apply such Net Cash Proceeds
pursuant to such provision.
(d) If the Securities tendered pursuant to an Excess
Proceeds Offer have an aggregate purchase price that is less than
the Excess Proceeds available for the purchase of the Securities,
the Company may use the remaining Excess Proceeds for general
corporate purposes without regard to the provisions of this
Section 1015(d). The Company shall not be required to make an
Excess Proceeds Offer pursuant to this Section 1015 if the Excess
Proceeds available therefor are less than $10 million, provided
that the lesser amounts of such Excess Proceeds shall be carried
forward and cumulated for each 36 consecutive month period for
purposes of determining whether an Excess Proceeds Offer is re-
quired with respect to any Excess Proceeds of any subsequent
Asset Dispositions. Any such lesser amounts so carried forward
and cumulated need not be segregated or reserved and may be used
for general corporate purposes, provided that such use shall not
reduce the amount of cumulated Excess Proceeds or relieve the
Company of its obligation hereunder to make an Excess Proceeds
Offer with respect thereto.
(e) The Company shall make an Excess Proceeds Offer by
mailing to each Holder, with a copy to the Trustee, within 30
days after the receipt of Excess Proceeds that cause the cumu-
lated Excess Proceeds to exceed $10 million, a written notice
that shall specify the purchase date, which shall not be less
than 30 days nor more than 60 days after the date of such notice
(the "Excess Proceeds Purchase Date"), that shall contain certain
information concerning the business of the Company that the
Company believes in good faith shall enable the Holders to make
an informed decision and that shall contain information
concerning the procedures applicable to the Excess Proceeds Offer
(including, without limitation, the right of withdrawal) and the
effect of such offer on the Securities tendered. Holders that
elect to have their Securities purchased shall be required to
surrender such Notes at least one Business Day prior to the
Excess Proceeds Purchase Date. If at the expiration of the
Excess Proceeds Offer period the aggregate purchase price of the
Securities properly tendered by Holders pursuant to the Excess
Proceeds Offer exceeds the amount of such Excess Proceeds, the
Securities or portions of Securities to be accepted for purchase
shall be selected by the Trustee in such manner as the Trustee
deems to be fair and appropriate in the circumstances.
On the Excess Proceeds Purchase Date, the Company shall (i)
accept for payment on a pro rata basis Securities or portions
thereof tendered pursuant to the Excess Proceeds Offer, (ii)
deposit with the Paying Agent money in immediately available
funds sufficient to pay the aggregate purchase price of all the
Securities or portions thereof so accepted and (iii) deliver to
the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof tendered
to the Company. The Paying Agent shall promptly mail to the
Holders of each Security so accepted payment in an amount equal
to the aggregate purchase price, and the Trustee shall promptly
authenticate and mail to the Holders of each Security so accepted
payment in an amount equal to the purchase price thereof, and the
Trustee shall promptly authenticate and mail to such Holders new
Securities equal in principal amount to any portion of the Secu-
rity surrendered that was not purchased. The Company shall make
a public announcement of the results of the Excess Proceeds Offer
as soon as practicable after the Excess Proceeds Purchase Date.
For the purposes of this Section 1015, the Trustee shall act as
the Paying Agent.
If the Company is prohibited by applicable law from making
the Excess Proceeds Offer or purchasing Securities thereunder,
the Company need not make an Excess Proceeds Offer pursuant to
this Section 1015 for so long as such prohibition is in effect.
The Company shall comply with all applicable tender offer
rules, including, without limitation, Rule 14e-1 under the
Exchange Act, in connection with an Excess Proceeds Offer.
Section 1016. Limitation on Certain Sale-Leasebacks.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to, Incur
or otherwise become obligated with respect to any sale-leaseback
(other than a sale-leaseback with respect to a Permitted Facility
that is Non-Recourse) unless, (i) (a) if effected by the Company,
the Company would be permitted to Incur such obligation under
Section 1008 or, (b) if effected by a Restricted Subsidiary or an
Eligible Joint Venture, such Restricted Subsidiary or such
Eligible Joint Venture would be permitted to Incur such obliga-
tion under Section 1009(b), assuming for the purpose of this
Section 1016 and Section 1008 and 1009 that (x) the obligation
created by such sale-leaseback is a Capitalized Lease and (y) the
Capitalized Lease Obligation with respect thereto is the
Attributable Value thereof, (ii) the Company, such Restricted
Subsidiary or such Eligible Joint Venture is permitted to grant a
Lien with respect to the property that is the subject of such
sale-leaseback under Section 1012 of this Indenture, (iii) the
proceeds of such sale-leaseback are at least equal to the fair
market value of the property sold (determined in good faith as
evidenced by an Officers' Certificate delivered to the Trustee in
respect of a transaction involving less than $25 million, or, if
equal to or in excess of $25 million, by the Board of Directors,
as evidenced by a Board Resolution) and (iv) the Net Cash
Proceeds of the sale-leaseback are applied pursuant to Section
1015.
Section 1017. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto,
the Company shall file with the Commission the annual reports,
quarterly reports and other documents that the Company would have
been required to file with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto if the
Company were subject thereto, such documents to be filed with the
Commission on or prior to the respective dates by which the
Company would have been required to file them. The Company shall
also in any event (a) within 15 days of each such date (i)
transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders,
and (ii) file with the Trustee copies of the annual reports,
quarterly reports and other documents (without exhibits) which
the Company would have been required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto if the Company were subject thereto
and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon
written request, supply copies of such documents (without exhib-
its) to any prospective Holder.
Section 1018. Limitation on Sale of Subsidiary Preferred Stock.
The Company shall not permit any of its Restricted Subsid-
iaries or any Eligible Joint Venture to create, assume or other-
wise cause or suffer to exist any Preferred Stock except: (i)
Preferred Stock outstanding on the date of this Indenture,
including Preferred Stock issued as dividends in respect of such
Preferred Stock pursuant to the terms of the agreement or instru-
ment that governs such Preferred Stock as in effect on the Issue
Date of the Securities, (ii) Preferred Stock held by the Company,
a Restricted Subsidiary of the Company or an Eligible Joint Ven-
ture, (iii) Preferred Stock issued by a Person prior to the time
(a) such Person becomes a Restricted Subsidiary or an Eligible
Joint Venture, (b) such Person merges with or into another
Restricted Subsidiary or another Eligible Joint Venture or (c) a
Restricted Subsidiary or an Eligible Joint Venture merges with or
into such Person (in a transaction in which such Person becomes a
Restricted Subsidiary or an Eligible Joint Venture), provided
that such Preferred Stock was not issued in anticipation of such
Person becoming a Restricted Subsidiary or an Eligible Joint
Venture or of such merger and (iv) Preferred Stock issued or
agreed to be issued by a Restricted Subsidiary or an Eligible
Joint Venture in connection with the financing of the construc-
tion, design, engineering, procurement, equipping, developing,
operation, ownership, management, servicing or acquisition of a
Permitted Facility or the retirement of Debt or Preferred Stock
secured by such Permitted Facility or in order to enhance the
repatriation of equity, advances or income or the increase of
after-tax funds available for distribution to the owners of such
Permitted Facility, (v) Preferred Stock issued or agreed to be
issued by a Restricted Subsidiary or an Eligible Joint Venture in
satisfaction of legal requirements applicable to a Permitted
Facility or to maintain the ordinary course of conduct of such
Restricted Subsidiary's or such Eligible Joint Venture's business
in the applicable jurisdiction and (vi) Preferred Stock that is
exchanged for, or the proceeds of which are used to refinance,
any Preferred Stock permitted to be outstanding pursuant to
clauses (i) through (v) hereof (or any extension, renewal or
refinancing thereof), having a liquidation preference not to
exceed the liquidation preference of the Preferred Stock so ex-
changed or refinanced and having a redemption period no shorter
than the redemption period of the Preferred Stock so exchanged or
refinanced.
Section 1019. Statement by Officers as to Default; Compliance
Certificates.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the
Company, its Restricted Subsidiaries and the Eligible Joint
Ventures (signed by a signatory prescribed under the Trust Inden-
ture Act) during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to deter-
mining whether the Company has kept, observed, performed and ful-
filled its obligations under this Indenture and whether the Re-
stricted Subsidiaries and the Eligible Joint Ventures are in com-
pliance with all covenants of this Indenture applicable to them
and further stating, as to each such Officer signing such cer-
tificate, that to the best of his knowledge each has kept,
observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions, and
conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default
of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) The Company shall, so long as any of the Securi-
ties are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of (i) any Default or Event of Default or
(ii) any event of default under any other mortgage, indenture or
instrument referred to in Section 501(6), an Officers'
Certificate specifying such Default, Event of Default or other
event of default and what action the Company is taking or
proposes to take with respect thereto.
Section 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Section 801, provided
pursuant to Section 901(2) and set forth in Sections 1004 to
1012, inclusive, Section 1014 and Sections 1016 through 1018,
inclusive, and Section 1022 if before the time for such
compliance the Holders of at least a majority in principal amount
at Stated Maturity of the Outstanding Securities shall, by Act of
such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or condi-
tion except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
Section 1021. Company to Supply Information Concerning Original
Issue Discount.
The Company shall provide to the Trustee on a timely basis
such information as the Trustee requires to enable the Trustee to
prepare and file any form required to be filed with the Internal
Revenue Service or to the Holders of the Securities relating to
original issue discount, including without limitation, Form 1099-
OID or any successor form.
Section 1022. Limitation on Business.
The Company shall, and shall cause its Restricted
Subsidiaries and the Eligible Joint Ventures to, engage only in
(i) the ownership, design, engineering, procurement, construc-
tion, development, acquisition, operation, servicing, management
or disposition of Permitted Facilities, (ii) the ownership, cre-
ation, development, acquisition, servicing, management or
disposition of Restricted Subsidiaries and Joint Ventures that
own, construct, develop, design, engineer, procure, acquire,
operate, service, manage or dispose of Permitted Facilities,
(iii) obtaining, arranging or providing financing incident to any
of the foregoing and (iv) other related activities incident to
any of the foregoing. The Company shall not, and shall not
permit any of its Restricted Subsidiaries or any Eligible Joint
Venture to, make any Investment or otherwise acquire any Property
that is not directly related to the business of the Company as
described in the preceding sentence (collectively, the
"Ineligible Investments") other than as a part of an Investment
or an acquisition of Property that is predominantly and directly
related to the business of the Company as described above, and if
the aggregate fair market value of such Ineligible Investments in
the aggregate exceeds 10% (the "10% Limit") of the total assets
of the Company and its consolidated Restricted Subsidiaries (as
determined in accordance with GAAP) as determined in good faith
by the Chief Financial Officer, as evidenced by an Officers'
Certificate, the Company, its Restricted Subsidiaries and the
Eligible Joint Ventures must cease acquiring any additional
Ineligible Investments and, within 18 months of the acquisition
that caused the Ineligible Assets to exceed the 10% Limit, must
return to compliance with the 10% Limit by disposing of Ineligi-
ble Assets or otherwise, provided that such 18-month period may
be extended up to an additional six months if, despite the
Company's active efforts during such 18-month period to dispose
of such Ineligible Investments or to otherwise come into compli-
ance with such 10% Limit, the Company is unable to do so because
of regulatory restrictions or delays or adverse market condi-
tions.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the
Company, in the amounts, at any time on or after January 15,
1999, at the Redemption Prices specified in the form of Security
hereinbefore set forth (together with any applicable accrued and
unpaid interest to the Redemption Date) and subject to the
conditions specified in the form of Security hereinbefore set
forth.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by this Indenture and the provisions of the Securities,
shall be made in accordance with such provisions and this Article
Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities purs-
uant to Section 1101 shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company pursuant
to Section 1101 of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the outstanding Securities are to be re-
deemed, the Securities or portions of Securities to be redeemed
or accepted shall be selected by the Trustee pro rata or
otherwise in such manner as the Trustee deems to be fair and
appropriate in the circumstances, provided that the Trustee shall
redeem Securities only in denominations of $1,000 principal
amount and integral multiples thereof.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture and or the Securities,
unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been
or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given as provided in Section
106 not less than 30 nor more than 60 days prior to the Redemp-
tion Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities
to be redeemed, including CUSIP Numbers,
(4) that on the Redemption Date the Redemption Price
shall become due and payable upon each such security to be
redeemed and that, unless the Company shall default in the
payment of the Redemption Price and any applicable accrued
interest, (i) in the case of a Redemption Date on or after
January 15, 1999, interest thereon shall cease to accrue on and
after said Redemption Date and (ii) in the case of a Redemption
Date prior to January 15, 1999, the Accreted Value thereof shall
not increase after said Redemption Date, and
(5) the name of the Paying Agent or Agents and the
place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense
of the Company and shall be irrevocable.
Section 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money sufficient to pay the Redemp-
tion Price of, and (except if the Redemption Date shall be an
Interest Payment Date) any applicable accrued and unpaid interest
on, all the Securities that are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and any applicable accrued
and unpaid interest) such Securities shall not bear interest and
the Accreted Value of such Securities shall thereupon and
thereafter conclusively be deemed to be their Accreted Value
determined on and as of such Redemption Date and shall not in-
crease. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with any applicable
accrued and unpaid interest to the Redemption Date; provided that
installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates ac-
cording to their terms and the provisions of Section 307.
If any Security called for redemption in accordance with the
election of the Company made pursuant to Section 1101 shall not
be so paid upon surrender thereof for redemption, the unpaid
Redemption Price thereof shall, until paid, bear interest or
accrete from the Redemption Date at the rate or manner provided
by the Security.
Section 1108. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 1002 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instru-
ment of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unre-
deemed portion of the principal amount of the Security so surren-
dered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1202 or Section 1203 applied to the Outstanding Securi-
ties (as a whole and not in part) upon compliance with the condi-
tions set forth below in this Article Twelve. Any such election
shall be evidenced by a Board Resolution.
Section 1202. Defeasance and Discharge.
Upon the Company's exercise of its option to have this
Section 1202 applied to the Outstanding Securities (as a whole
and not in part), the Company shall be deemed to have been
discharged from its obligations with respect to such Securities
as provided in this Section 1202 on and after the 123rd day after
the conditions set forth in Section 1204 are satisfied (herein-
after called "Defeasance") (or immediately if an Opinion of
Counsel is delivered to the effect described in clause (C)(y) of
paragraph (2) of Section 1204). For this purpose, such Defea-
sance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities
and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are con-
cerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, pay-
ments in respect of the principal of and any premium and interest
on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304,
305, 306, 1002, 1003 and 1004 (only with respect to the corporate
existence and rights of the Company), (3) the rights, powers,
trusts, duties and immunities of the Trustee under this Inden-
ture, (4) Article Eleven and (5) this Article Twelve. Subject to
compliance with this Article Twelve, the Company may exercise its
option to have this Section 1202 applied to the Outstanding
Securities (as a whole and not in part) notwithstanding the prior
exercise of its option to have Section 1203 applied to such Secu-
rities.
Section 1203. Covenant Defeasance.
Upon the Company's exercise of its option to have this
Section applied to the Outstanding Securities (as a whole and not
in part), (i) the Company, its Restricted Subsidiaries and its
Eligible Joint Ventures shall be released from its obligations
under Section 801(iii), Sections 1005 through 1018, inclusive,
Section 1022, and any covenant provided pursuant to Section
901(2) and (ii) the occurrence of any event specified in Section
501(1) (solely with respect to Offers to Purchase), Section
501(3), Section 501(4) (with respect to any of Section 801(iii)
and Sections 1005 through 1018, inclusive, Section 1022, and any
such covenants provided pursuant to Section 901(2)), Section
501(5) or Section 501(6) shall be deemed not to be or result in
an Event of Default, in each case with respect to such Securities
as provided in this Section on and after the date the conditions
set forth in Section 1204 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defea-
sance means that, with respect to such Securities, the Company
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Sections
501(1) and 501(4)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision
herein or in any other document; but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 609 and agrees
to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to the benefits of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations that
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms shall provide, not
later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, in each case 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, and which shall
be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of, premium if any and any
installment of accrued interest on such Securities on the
respective Stated Maturities thereof or, if the Company makes ar-
rangements satisfactory to the Trustee for the redemption of the
Securities prior to their Stated Maturity, on any earlier Redemp-
tion Date, in accordance with the terms of this Indenture and
such Securities.
(2) In the event of an election to have Section 1202
apply to the Outstanding Securities, the Company shall have
delivered to the Trustee (A) either (X) an Opinion of Counsel to
the effect that Holders shall not recognize income, gain or loss
for federal income tax purposes as a result of such deposit,
defeasance and discharge and shall 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 the Company had paid or redeemed
such Securities on the applicable dates, 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
or (y) a ruling directed to the Trustee or the Company received
from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel, (B) an Opinion of Counsel to
the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and (C) an Opinion of
Counsel to the effect that either (x) after the passage of 123
days following the deposit, the trust fund shall not be subject
to the effect of Section 547 or 548 of the U.S. Bankruptcy Code
or Section 15 of the New York Debtor and Creditor Law or (y)
based upon existing precedents, if the manner were properly
briefed, a court should hold that the deposit of moneys and/or
U.S. Government Obligations as provided in Section 1204(1) would
not constitute a preference voidable under Section 547 or 548 of
the U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law.
(3) In the event of an election to have Section 1203
apply to the Outstanding Securities, the Company shall have
delivered to the Trustee (i) an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities shall not recog-
nize income, gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and shall be subject to Federal income
tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were
not to occur and the Company had paid or redeemed such Securities
on the applicable dates, (ii) an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (iii) an Opinion of Counsel to
the effect that either (x) after the passage of 123 days
following the deposit, the trust fund shall not be subject to the
effect of Section 547 or 548 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law or (y) based
upon existing precedents, if the manner were properly briefed, a
court should hold that the deposit of moneys and/or U.S.
Government Obligations as provided in Section 1204(1) would not
constitute a preference voidable under Section 547 or 548 of the
U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law.
(4) Immediately after giving effect to such deposit on
a pro forma basis, no Default or Event of Default or event that
after the giving of notice or lapse of time or both would become
an Event of Default, with respect to the Outstanding Securities
shall have occurred and be continuing at the time of such deposit
or (unless an Opinion of Counsel is delivered to the effect de-
scribed in Section 1204(2)(C)(y) or 1204(3)(iii)(y)) during the
period ending on the 123rd day after the date of such deposit.
(5) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is
a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act of 1940, as amended, unless such trust shall be registered
under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
(9) If the Securities are listed on a national
securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Securities
shall not be delisted as a result of such deposit, defeasance and
discharge.
Section 1205. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section 1205 and Section
1206, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1204 or
otherwise in respect of the Outstanding Securities shall be held
in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (other than the
Company acting as its own Paying Agent) as the Trustee may deter-
mine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article Twelve to the contrary notwith-
standing, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 1204 that, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof deliv-
ered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect the Defeasance
or Covenant Defeasance, as the case may be, with respect to the
Outstanding Securities.
Section 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Twelve with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1202 or 1203 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article Twelve with respect to such Securities, until
such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1205 with respect to
such Securities in accordance with this Article Twelve; provided
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such rein-
statement of its obligations, the Company shall be subrogated to
the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
This instrument may be executed in any number of counter-
parts, each of which so executed shall be deemed to be an origi-
nal, but all such counterparts shall together constitute but one
and the same instrument.
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 the day and
year first above written.
CALIFORNIA ENERGY COMPANY,
INC.
By:/s/ John G. Sylvia
Attest: Name: John G. Sylvia
/s/ Steven A. McArthur Title:Vice President, Chief
Steven A. McArthur Financial Officer
IBJ SCHRODER BANK & TRUST
COMPANY
By: /s/ Barbara McCluskey
Attest: Name: Barbara McCluskey
/s/ Susan Lavelle Title:Asst. Vice President
Susan Lavelle
Assistant Secretary
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the th day of , 1994, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is of California Energy Company, Inc., one
of the corporations described in and that executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authori-
ty.
STATE OF NEW YORK )
ss.:
COUNTY OF KINGS )
On the 24th day of March, 1994, before me personally
came Barbara McCluskey, to me known, who, being by me
duly sworn, did depose and say that [she] is an Assistant Vice
President of IBJ Schroder Bank & Trust Company, one of the corpo-
rations described in and that executed the foregoing instrument;
that [she] knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that [she] signed [her] name thereto by like authority.
/s/ Jane Shaheen
Jane Shaheen
Notary Public, State of New York
No. 244609846
Qualified in Kings County
Commission Expires March 30, 1995
STATE OF NEBRASKA )
ss.:
COUNTY OF DOUGLAS )
On the 24th day of March, 1994, before me personally came John
G. Sylvia, to me known, who, being by me duly sworn, did depose and say
that he is the Vice President, Chief Financial Officer and Treasurer of
California Energy Company, Inc., one of the corporations described in
and that executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Connie L. Netzel
General Notary - State of Nebraska
Connie L. Netzel
My Comm. Exp. Oct. 27, 1995
EXHIBIT A
PROMISSORY NOTE
Date of Issue: as of ____________
FOR VALUE RECEIVED, the undersigned, [Borrower], a
______________________ corporation ("Borrower"), hereby promises
to pay to the order of [Lender], a ___________ corporation
("Lender"), $ __________ (the "Principal") and any interest
accrued thereon, upon demand by the Lender at any time six months
subsequent to the date on which the 10-1/4% Senior Discount Notes
due 2004 (the "Senior Notes") of California Energy Company, Inc.
that were issued pursuant to an Indenture dated as of March 24,
1994 between California Energy Company, Inc. and IBJ Schroder
Bank and Trust Company shall have been repaid in full or such
earlier date as may be permitted under the terms of such
Indenture.
Section 1 Accrual and Payment of Interest
under this Promissory Note
(a) The Principal shall accrue interest from the date
hereof at an annual rate (computed on the basis of a 360 day
year) of ___% which, to the extent permitted by applicable law,
shall be compounded semi-annually on each _____ and ______ and
added to the Principal hereof.
Section 2 Subordination
Payment of Principal of and interest on this Promissory Note
shall be subordinated to the fullest extent permitted by
applicable law to the prior payment in full of the principal of,
premium, if any, and interest on any other indebtedness for money
borrowed of the Borrower, to the extent that the same is thus due
and owing whether at its stated maturity, upon acceleration or
otherwise.
Section 3 Notices
All notices required or permitted hereunder shall be given
by telex where appropriate and confirmed in writing or by prepaid
registered mail to the addresses of the parties set forth in this
Section 3 or to such other address as either party shall duly
specify by written notice to the other.
If to Borrower to:
_______________________
_______________________
_______________________
_______________________
If to Lender to:
_______________________
_______________________
_______________________
_______________________
Section 4 No Waiver
No failure or delay of either party hereto to exercise any
power under this Promissory Note or to insist upon strict
compliance by either party hereto of any obligations hereunder
shall constitute a waiver of either party's rights to demand
exact compliance with the terms hereof.
Section 5 Governing Law
This Promissory Note is made under and in accordance with
the laws of the ________________, and the rights of the parties
in the construction and effect of each and every provision hereof
shall be subject to the exclusive jurisdiction of and shall be
construed and regulated according to the laws of
_____________________.
[Borrower]
By ______________________
Name:
Title:
