<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): MAY 9, 2000
-------------------
SIERRA PACIFIC RESOURCES
------------------------------------------------------
(Exact name of registrant as specified in its charter)
NEVADA
------------------------------------------------------
(State of incorporation or organization)
1-8788 88-0198358
- ------------------------ ------------------------
(Commission File Number) (I.R.S. Employer
Identification No.)
P.O. BOX 30150 (6100 NEIL ROAD), RENO, NEVADA 89511
----------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (775) 834-4011
-------------------
<PAGE>
Item 5. OTHER EVENTS.
On June 7, 1999, the Registrant filed a Registration Statement on
Form S-3 (File Nos. 333-80149, 333-80149-01, and 333-80149-02), as amended by
a Pre-Effective Amendment No. 1, filed on May 1, 2000 (the "Registration
Statement"), in connection with its proposed offering of $500,000,000 of
securities. The Registration Statement was declared effective on May 3, 2000.
As exhibits to the Registration Statement, the Registrant filed draft forms
of several agreements relating to Debt Securities. The Registrant
subsequently offered and sold $300,000,000 principal amount of 8-3/4% Notes
due 2000 (the "Notes") pursuant to a definitive prospectus and prospectus
supplement, the final form of which was filed in a 424(b)(5) filing on May 8,
2000. The Notes were offered by Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Credit Suisse First Boston Corporation, and Salomon Smith
Barney Inc., as underwriters. In connection with the offering and sale of the
Notes, the Registrant finalized certain agreements relating to the Notes
which had been previously filed in draft form. The final forms of those
agreements are filed herewith as exhibits, as set forth in Item 7 hereof.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
Exhibit 1.1 -- Purchase Agreement, dated May 5, 2000
Exhibit 4.1 -- Indenture between Sierra Pacific Resources and The
Bank of New York, dated as of May 1, 2000
Exhibit 4.2 -- Global 8-3/4% Note due 2005
Exhibit 4.3 -- Officers' Certificate pursuant to Sections 2.01,
13.04 and 13.05 of the Indenture establishing the
terms of the 8-3/4% Notes due 2005
<PAGE>
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.
SIERRA PACIFIC RESOURCES
Date: May 22, 2000 By: /s/ Richard K. Atkinson
-------------------------------------
Richard K. Atkinson, Assistant Treasurer
<PAGE>
EXHIBIT INDEX
EXHIBIT DOCUMENT
- ------- --------
1.1 Purchase Agreement, Dated May 5, 2000
4.1 Indenture between Sierra Pacific Resources and The Bank of New
York, dated as of May 1, 2000
4.2 Global 8-3/4% Note due 2005
4.3 Officers' Certificate pursuant to Sections 2.01, 13.04 and
13.05 of the Indenture establishing the terms of the 8-3/4%
Notes due 2005
<PAGE>
Exhibit 1.1
================================================================================
SIERRA PACIFIC RESOURCES
(a Nevada corporation)
NOTES DUE 2005
PURCHASE AGREEMENT
Dated: May 5, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. REPRESENTATIONS AND WARRANTIES...............................................2
REPRESENTATIONS AND WARRANTIES BY THE COMPANY................................2
Compliance with Registration Requirements...........................2
Incorporated Documents..............................................3
Independent Accountants.............................................3
Financial Statements................................................4
No Material Adverse Change in Business..............................4
Good Standing of the Company........................................4
Good Standing of Subsidiaries.......................................5
Capitalization......................................................5
Authorization of Agreement..........................................5
Authorization of the Indenture......................................5
Authorization of the Securities.....................................5
Description of the Securities and the Indenture.....................6
Absence of Defaults and Conflicts...................................6
Absence of Proceedings..............................................6
Accuracy of Exhibits................................................7
Absence of Further Requirements.....................................7
Possession of Licensesand Permits...................................7
Title to Property, etc..............................................7
Investment Company Act..............................................8
Holding Company Act.................................................8
OFFICER'S CERTIFICATES.......................................................8
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2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING...................................8
SECURITIES...................................................................8
PAYMENT......................................................................8
DENOMINATIONS; REGISTRATION..................................................9
3. COVENANTS OF THE COMPANY.....................................................9
COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS...............9
FILING OF AMENDMENTS.........................................................9
DELIVERY OFREGISTRATION STATEMENTS...........................................9
DELIVERY OF PROSPECTUSES....................................................10
CONTINUEDCOMPLIANCE WITH SECURITIES LAWS....................................10
BLUE SKY QUALIFICATIONS.....................................................10
RULE 158 ...................................................................11
USE OF PROCEEDS.............................................................11
RESTRICTION ON SALE OF SECURITIES...........................................11
REPORTING REQUIREMENTS......................................................11
4. PAYMENT OF EXPENSES.........................................................11
EXPENSES ...................................................................11
TERMINATION OF AGREEMENT....................................................12
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.....................................12
EFFECTIVENESS OF REGISTRATION STATEMENT.....................................12
OPINION OF COUNSEL FORCOMPANY...............................................12
OPINION OF COUNSELFOR UNDERWRITERS..........................................12
OFFICERS' CERTIFICATE.......................................................12
ACCOUNTANT'S COMFORTLETTER..................................................13
MAINTENANCE OF RATING.......................................................13
ADDITIONAL DOCUMENTS........................................................13
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TERMINATION OF AGREEMENT....................................................13
6. INDEMNIFICATION.............................................................14
INDEMNIFICATION OF UNDERWRITERS.............................................14
INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS..........................15
ACTIONS AGAINST PARTIES; NOTIFICATION.......................................15
SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE..........................15
7. CONTRIBUTION................................................................16
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY..............17
9. TERMINATION OF AGREEMENT....................................................17
TERMINATION; GENERAL........................................................17
LIABILITIES.................................................................18
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS..................................18
11. NOTICES.....................................................................18
12. PARTIES.....................................................................18
13. GOVERNING LAW AND TIME......................................................19
14. EFFECT OF HEADINGS..........................................................19
SCHEDULES
Schedule A - List of Underwriters...........................Sch A-1
Schedule B - Pricing Information............................Sch B-1
EXHIBITS
Exhibit A - Contents of Letter of Deloitte & Touche LLP..........A-1
</TABLE>
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<PAGE>
SIERRA PACIFIC RESOURCES
(a Nevada Corporation)
$300,000,000
Notes due 2005
PURCHASE AGREEMENT
------------------
May 5, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Sierra Pacific Resources, a Nevada corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Credit Suisse First Boston Corporation, and
Salomon Smith Barney Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $300,000,000
aggregate principal amount of the Company's Notes due 2005 (the "Securities").
The Securities are to be issued pursuant to an indenture, dated as of May 1,
2000 (the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Trustee"). The term "Indenture," as used herein, includes the Company
Order (as defined in the Indenture) establishing the form and terms of the
Securities pursuant to Sections 2.1 and 3.1 of the Indenture.
<PAGE>
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-80149) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus and supplement
thereto. Promptly after the execution and delivery of this Agreement, the
Company will prepare and file a final prospectus and supplement thereto in
accordance with the provisions of Rule 424(b) of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations") specifying the
interest rate(s) on, the maturity date(s) of, the initial public offering
price(s) of, the underwriting discounts and commissions in respect of, the
redemption terms and prices, if any, of and any other terms of the Securities.
Each prospectus (including any supplement thereto) used before such registration
statement became effective, and any prospectus that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective is herein called the "Registration Statement." The
final prospectus, including the supplement thereto and further including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters on or after
the date hereof for use in connection with the offering of the Securities is
herein called the "Prospectus." For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus and
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each Underwriter as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement was filed
2
<PAGE>
under Rule 415 of the 1933 Act Regulations and, when so filed and at the
date hereof, meets the requirements set forth in clause (ix) and/or (x) of
Rule 415(a)(1) and complies in all other material respects with Rule 415.
The Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the time the Registration Statement became effective and at
the Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Merrill Lynch expressly for
use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and at
the Closing Time, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
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<PAGE>
(iv) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the results of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis, except as
noted therein, throughout the periods involved. The supporting schedules,
if any, included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein; and the assumptions used in the
preparation thereof are reasonable, and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change, or any development which is reasonably likely to result in a
material adverse change, in the condition (financial or otherwise), results
of operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise,
and (C) except for regular quarterly dividends on the common stock, par
value $1.00 per share, of the Company (the "Common Stock") in amounts per
share that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Nevada and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
4
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(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each
a "Significant Subsidiary") has been duly organized and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, in the
case of the common stock of each such subsidiary, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Significant Subsidiary was
issued in violation of any preemptive or similar rights of any
securityholder of such Significant Subsidiary. The only Significant
Subsidiaries of the Company are Sierra Pacific Power Company and Nevada
Power Company.
(viii) CAPITALIZATION. The issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of any preemptive or other similar rights of any securityholder of the
Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and the Trustee, will constitute
a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(xi) AUTHORIZATION OF THE SECURITIES. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company and, when authenticated by the Trustee in the manner provided for
in the Indenture and issued and delivered by the Company against payment of
the purchase price therefor as provided in this
5
<PAGE>
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(xii) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The Securities
and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed as exhibits to the Registration
Statement.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The execution, delivery and
performance of this Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated herein and in the
Registration Statement and compliance by the Company with its obligations
hereunder and under the Indenture and the Securities have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other contract, agreement or instrument
to which the Company or any of its subsidiaries is a party, or by which it
or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect); nor will such action result
in any violation of the provisions of the charter or by-laws of the Company
or any of its Significant Subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Significant Subsidiaries or any
of their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xiv) ABSENCE OF PROCEEDINGS. Except as disclosed in the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be disclosed
in the Registration Statement or which, singly or in the aggregate, might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
6
<PAGE>
(xv) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xvi) GOVERNMENTAL APPROVALS. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary or required
for the execution or delivery by the Company of, the performance by the
Company of its obligations under, or the consummation by the Company of the
transactions contemplated by, this Agreement, the Indenture or the
Securities, except such as have been already made or obtained or as may be
required under the 1933 Act, the 1934 Act, the 1939 Act or any applicable
state securities laws or any regulations promulgated under any of the
foregoing.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
Significant Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them;
the Company and its Significant Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except to the
extent that the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of such Governmental Licenses are valid
and in full force and effect, except to the extent that the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect; and
neither the Company nor any of its Significant Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
one or more of such Governmental Licenses to the extent that the revocation
or modification thereof, singly or in the aggregate, would result in a
Material Adverse Effect.
(xviii) TITLE TO PROPERTY, ETC. The Company and its Significant
Subsidiaries have good and marketable title to all real property owned by
them and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described or referred to in the Prospectus or (b) do not, singly or in the
aggregate, affect the value of such property or interfere with the use made
and proposed to be made of such property to such extent as might reasonably
be expected to result in a Material Adverse Effect; and all of the leases
and subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
Significant Subsidiaries holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any Significant
Subsidiary has any notice of any claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, to the
extent that such claim might reasonably be expected to result in a Material
Adverse Effect.
7
<PAGE>
(xix) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) HOLDING COMPANY ACT. The Company is a "holding company" under the
Public Utility Holding Company Act of 1935, as amended (the "1935 Act"),
but, pursuant to Section 3(a)(1) of the 1935 Act, is exempt from all
provisions of such Act except Section 9(a)(2) thereof.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of [Thelen Reid &
Priest LLP, 40 West 57th Street, New York, New York], or at such other place as
shall be agreed upon by the Representatives and the Company, at 9:00 A.M.
(Eastern time) on the third business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
8
<PAGE>
(c) DENOMINATIONS; REGISTRATION. Certificates for the Securities shall be
in such denominations ($1,000 or integral multiples thereof) and registered in
such names as the Representatives may request in writing at least one full
business day before the Closing Time. The Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
3. COVENANTS OF THE COMPANY.
The Company covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be
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identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of this agreement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of this
agreement. The Company will also supply the Underwriters with such
information as is
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necessary for the determination of the legality of the Securities for
investment under the laws of such jurisdictions as the Underwriters may
request.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) RESTRICTION ON SALE OF DEBT SECURITIES. During a period of 15
business days from the date of the Prospectus, without the prior written
consent of Merrill Lynch the Company will not, directly or indirectly,
issue, sell, offer or contract to sell, grant any option for the sale of,
or otherwise transfer or dispose of, any debt securities of the Company and
will not permit either Nevada Power Company or Sierra Pacific Power Company
to take any such action with respect to any of its debt securities. During
a period of 15 business days thereafter, without three days' prior written
notice to Merrill Lynch the Company will not take any such action and will
not permit either Nevada Power Company or Sierra Pacific Power Company to
take such action with respect to any of its debt securities.
(j) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
agreement among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities and (ix) any fees
payable in connection with the rating of the Securities.
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(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement shall have become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus shall have been
filed with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions as to customary
matters, dated as of Closing Time, of Woodburn and Wedge and of Choate,
Hall & Stewart, counsel for the Company, in form and substance satisfactory
to the Representatives and counsel to the Underwriters, set forth in
Exhibits A.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Thelen Reid & Priest LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters with respect to such matters as the Representatives may
reasonably request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) NO MATERIAL ADVERSE CHANGE; OFFICERS' CERTIFICATE. At Closing
Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change, or any development which is reasonably likely to
result in a material adverse change, in the condition (financial or
otherwise), results of operations or business affairs of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company,
dated as
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of Closing Time, to the effect that (i) there has been no such material
adverse change or development, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At Closing Time, the Representatives
shall have received from Deloitte & Touche LLP a letter dated such date, in
form and substance satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type set forth or
referred to in Exhibit A hereto.
(f) MAINTENANCE OF RATING. At Closing Time, the Securities shall be
rated at least Baa2 by Moody's Investor's Service Inc. and BBB by Standard
& Poor's Ratings Group, a division of McGraw-Hill, Inc., and the Company
shall have delivered to the Representatives a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings; and
since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have
publicly announced that it has under surveillance or review its rating of
the Securities or any of the Company's other debt securities (unless such
announcement indicates that any change in such rating, if made, would be
positive).
(g) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(h) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
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6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or as to any statement in
or omission from the Statement of Eligibility and Qualification (Form T-1) of
the Trustee under the Indenture; and provided, further that this indemnity
agreement shall not inure to the benefit of any Underwriter or any person who
controls such Underwriter on account of any such loss, liability, claim, damage
or expense arising out of any such defect or alleged defect in any preliminary
prospectus or the Prospectus (or any supplement or amendment thereto) if a copy
of the Prospectus, as it then may be amended or supplemented (exclusive of the
Incorporated Documents), shall not have been given or sent by such Underwriter
with or prior to the written confirmation of the sale involved to the extent
that (i) the Prospectus, as then so amended or supplemented, would have cured
such defect or alleged defect, (ii) sufficient quantities of the Prospectus, as
then so amended or supplemented, were timely made available to such Underwriter
and (iii) such Underwriter shall not have reasonably objected to any such
amendment or supplement pursuant to Section 3(b) hereof.
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(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of
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any damages which such Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change, or any development which is reasonably likely to result in a material
adverse change, in the condition (financial or otherwise), results of operations
or business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
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(b) LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof and except that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at Closing Time to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives at North Tower, World Financial Center, New York, New York
10281-1201, attention of Russell D. Robertson; and notices to the Company shall
be directed to it at 6100 Neil Road, P.O. Box 30150, Reno, Nevada 89520,
attention of Mr. Richard K. Atkinson; or at such other address or to such other
person as either party may designate from time to time by notice given in
accordance with this Section 11.
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12. PARTIES.
This Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
13. GOVERNING LAW.
This agreement shall be governed by and construed in accordance with the
laws of the state of New York.
14. EFFECT OF HEADINGS.
The Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
15. UNDERWRITERS' COUNSEL
The Company and the Underwriters acknowledge that Thelen Reid & Priest LLP
(a) has acted or will act as counsel to the Underwriters in connection with this
Agreement and the transactions contemplated hereby and (b) has acted, and will
continue to act, as counsel to Sierra Pacific Resources and Sierra Pacific Power
Company in connection with federal income tax matters and certain special
projects, and each of the Company and the Underwriters consents to such dual
representation.
19
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
SIERRA PACIFIC RESOURCES
By /s/Mark A. Ruelle
---------------------------------
Title: Senior Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By R.D. Robertson
----------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
20
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount
Name of Underwriter of Securities
------------------- -------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated $165,000,000
Credit Suisse First Boston Corporation $67,500,000
Salomon Smith Barney Inc. $67,500,000
Total.................................................. $300,000,000
</TABLE>
Sch A-1
<PAGE>
SCHEDULE B
SIERRA PACIFIC RESOURCES
$300,000,000
Notes due 2005
1. The initial public offering price of the Securities shall be 99.472% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 98.872% of the principal amount thereof.
3. The interest rate on the Securities shall be 8.75% per annum.
4. The Securities will be redeemable at the option of the Company pursuant
to provisions described in the Preliminary Prospectus Supplement dated May 1,
2000 in the section "Description of the Notes - Optional Redemption" except that
the number of basis points referred to in that section shall be 25.
<PAGE>
================================================================================
SIERRA PACIFIC RESOURCES
Issuer
INDENTURE
Dated as of May 1, 2000
THE BANK OF NEW YORK
Trustee
Providing for the Issuance of Debt Securities in Series
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA SECTION INDENTURE SECTION
----------- -----------------
<S> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
310(a)(1) 7.10
- ----------------------------------------------------------------------------------------------------------------------------------
310(a)(2) 7.10
- ----------------------------------------------------------------------------------------------------------------------------------
310(a)(3) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
310(a)(4) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
310(a)(5) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
310(b) 7.08; 7.10
- ----------------------------------------------------------------------------------------------------------------------------------
310(c) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
311(a) 7.11
- ----------------------------------------------------------------------------------------------------------------------------------
311(b) 7.11
- ----------------------------------------------------------------------------------------------------------------------------------
312(a) 2.05
- ----------------------------------------------------------------------------------------------------------------------------------
312(b) 13.03
- ----------------------------------------------------------------------------------------------------------------------------------
312(c) 13.03
- ----------------------------------------------------------------------------------------------------------------------------------
313(a) 7.06
- ----------------------------------------------------------------------------------------------------------------------------------
313(b)(1) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
313(b)(2) 7.06
- ----------------------------------------------------------------------------------------------------------------------------------
313(c) 7.06
- ----------------------------------------------------------------------------------------------------------------------------------
313(d) 7.06
- ----------------------------------------------------------------------------------------------------------------------------------
314(a) 4.04
- ----------------------------------------------------------------------------------------------------------------------------------
314(b) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
314(c)(1) 13.04
- ----------------------------------------------------------------------------------------------------------------------------------
314(c)(2) 13.04
- ----------------------------------------------------------------------------------------------------------------------------------
314(c)(3) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
314(d) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
314(e) 13.05
- ----------------------------------------------------------------------------------------------------------------------------------
314(f) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
314(a) 7.01(b)
- ----------------------------------------------------------------------------------------------------------------------------------
315(b) 7.05
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TIA SECTION INDENTURE SECTION
----------- -----------------
<S> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
315(c) 7.01(a)
- ----------------------------------------------------------------------------------------------------------------------------------
315(d) 7.01(c)
- ----------------------------------------------------------------------------------------------------------------------------------
315(e) 6.12
- ----------------------------------------------------------------------------------------------------------------------------------
316(a) (last sentence) 13.06
- ----------------------------------------------------------------------------------------------------------------------------------
316(a)(1)(A) 6.09
- ----------------------------------------------------------------------------------------------------------------------------------
316(a)(1)(B) 6.10
- ----------------------------------------------------------------------------------------------------------------------------------
316(a)(2) N.A.
- ----------------------------------------------------------------------------------------------------------------------------------
316(b) 6.07
- ----------------------------------------------------------------------------------------------------------------------------------
317(a)(1) 6.04
- ----------------------------------------------------------------------------------------------------------------------------------
317(a)(2) 6.04
- ----------------------------------------------------------------------------------------------------------------------------------
317(b) 2.04
- ----------------------------------------------------------------------------------------------------------------------------------
318(a) 13.01
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
N.A. means Not Applicable
Note: This cross-reference table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01. Definitions 1
Section 1.02. Incorporation by Reference of Trust Indenture Act 6
Section 1.03. Rules of Construction 7
ARTICLE TWO THE SECURITIES 7
Section 2.01. Terms and Form 7
Section 2.02. Execution and Authentication 11
Section 2.03. Registrar and Paying Agent 13
Section 2.04. Paying Agent to Hold Money in Trust 14
Section 2.05. Securityholder Lists 14
Section 2.06. Transfer, Registration and Exchange 14
Section 2.07. Replacement Securities 17
Section 2.08. Outstanding Securities 18
Section 2.09. Temporary Securities 18
Section 2.10. Securities in Global Form 19
Section 2.11. Cancellation 19
Section 2.12. Defaulted Interest 20
Section 2.13. Persons Deemed Owners 20
Section 2.14. CUSIP Numbers 21
ARTICLE THREE REDEMPTION 21
Section 3.01. Applicability of Article 21
Section 3.02. Notice to Trustee 21
Section 3.03. Selection of Securities to Be Redeemed 22
Section 3.04. Notice of Redemption 22
Section 3.05. Effect of Notice of Redemption 23
Section 3.06. Deposit of Redemption Price or Securities 24
Section 3.07. Securities Redeemed in Part 24
ARTICLE FOUR COVENANTS 25
Section 4.01. Payment of Securities 25
Section 4.02. Maintenance of Office or Agency 25
Section 4.03. Money for Securities Payments to Be Held in Trust 26
Section 4.04. SEC Reports 28
Section 4.05. Statement as to Compliance 28
Section 4.06. Limitations on Liens on Stock of Restricted Subsidiaries 29
Section 4.07. Limitations on Issue or Disposition of Stock of Restricted Subsidiaries 29
Section 4.08. Additional Amounts. 29
Section 4.09. Waiver of Certain Covenants 30
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 4.10. Information Regarding Original Issue Discount 30
ARTICLE FIVE SUCCESSOR CORPORATION AND ASSUMPTION 31
Section 5.01. When Company May Merge, etc. 31
Section 5.02. Successor Corporation Substituted 31
ARTICLE SIX DEFAULTS AND REMEDIES 32
Section 6.01. Events of Default 32
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt 34
Section 6.03. Application of Proceeds 36
Section 6.04. Suits for Enforcement 37
Section 6.05. Restoration of Rights on Abandonments of Proceedings 37
Section 6.06. Limitations on Suits by Securityholders 37
Section 6.07. Unconditional Right of Securityholder to Institute Certain Suits 38
Section 6.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default 38
Section 6.09. Control by Holders of Securities 38
Section 6.10. Waiver of Past Defaults 39
Section 6.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances 40
Section 6.12. Right of Court to Require Filing of Undertaking to Pay Costs 40
ARTICLE SEVEN TRUSTEE 41
Section 7.01. Duties of Trustee 41
Section 7.02. Rights of Trustee 43
Section 7.03. Individual Rights of Trustee 44
Section 7.04. Trustee's Disclaimer 44
Section 7.05. Notice of Defaults 44
Section 7.06. Reports by Trustee to Holders 45
Section 7.07. Compensation and Indemnity 45
Section 7.08. Replacement of Trustee 46
Section 7.09. Successor Trustee by Merger, etc. 46
Section 7.10. Eligibility; Disqualification 47
Section 7.11. Preferential Collection of Claims against Company 47
ARTICLE EIGHT DISCHARGE OF INDENTURE 47
Section 8.01. Termination of the Company's Obligations 47
Section 8.02. Termination of the Company's Obligations under Certain Circumstances 48
Section 8.03. Application of Trust Money 50
Section 8.04. Repayment to Company 50
Section 8.05. Indemnity for Government Obligations 50
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS 50
Section 9.01. Without Consent of Holders 50
Section 9.02. With Consent of Holders 52
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 9.03. Compliance with Trust Indenture Act 53
Section 9.04. Revocation and Effect of Consents 53
Section 9.05. Notation on or Exchange of Securities 54
Section 9.06. Trustee to Sign Amendments, etc. 54
ARTICLE TEN REPAYMENT AT THE OPTION OF HOLDERS 55
Section 10.01. Applicability of Article 55
ARTICLE ELEVEN CONCERNING THE SECURITYHOLDERS 55
Section 11.01. Evidence of Action Taken by Securityholders 55
Section 11.02. Proof of Execution of Instruments and of Holding of Securities 56
Section 11.03. Holders to be Treated as Owners 57
Section 11.04. Securities Owned by Company Deemed Not Outstanding 57
Section 11.05. Right of Revocation of Action Taken 58
Section 11.06. Meetings of Holders 58
Section 11.07. Call, Notice and Place of Meetings 59
Section 11.08. Persons Entitled to Vote at Meetings 59
Section 11.09. Quorum; Action 59
Section 11.10. Determination of Voting Rights; Conduct and Adjournment of Meetings 60
Section 11.11. Counting Votes and Recording Action of Meetings 61
ARTICLE TWELVE SINKING FUNDS 61
Section 12.01. Applicability of Article 61
Section 12.02. Satisfaction of Sinking Fund Payments with Securities 62
Section 12.03. Redemption of Securities for Sinking Fund 62
ARTICLE THIRTEEN MISCELLANEOUS 63
Section 13.01. Trust Indenture Act Controls 63
Section 13.02. Notices 63
Section 13.03. Communication by Holders with Other Holders 65
Section 13.04. Certificate and Opinion as to Conditions Precedent 65
Section 13.05. Statements Required in Certificate or Opinion 65
Section 13.06. When Treasury Securities Disregarded 66
Section 13.07. Legal Holidays 66
Section 13.08. Governing Law 66
Section 13.09. No Adverse Interpretation of Other Agreements 66
Section 13.10. Successors 66
Section 13.11. Duplicate Originals 67
Section 13.12. Securities in Foreign Currencies 67
</TABLE>
iii
<PAGE>
INDENTURE dated as of May 1, 2000, between Sierra Pacific Resources, a
corporation incorporated under the laws of Nevada (the "Company"), and The
Bank of New York, a New York banking corporation, as trustee hereunder
("Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's
Securities issued hereunder:
RECITALS
The Company has authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be
issued in one or more series as herein provided.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on Holders who are not United States Persons, or as otherwise
specified in the terms of a Security established pursuant to Section 2.01,
and which are owing to such Holders.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent
for service of notice and demands. See Section 2.03.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authorized Newspaper" means a newspaper printed in the official
language or in the English language of the country of publication and
customarily published at least once a day on each Business Day in each
calendar week and of general circulation in New York, New York or in any
other place as required in this Indenture, whether or not such newspaper is
published on Legal Holidays, or, with respect to the Securities of any
series, such other newspaper(s), as may be specified in or pursuant to the
Board Resolution of the Company or supplement to this
<PAGE>
Indenture pursuant to which such series of Securities is issued. Whenever,
under the provisions of this Indenture or such Board Resolutions, two or more
publications of a notice or other communication are required or permitted,
such publications may be in the same or different newspapers. If, because of
temporary or permanent suspension of publication or general circulation of
any newspaper or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture or a Board Resolution in the
manner provided, then such publication in lieu thereof or such other notice
as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
"Bankruptcy Law" shall have the meaning set forth in Section 7.07.
"Bearer Security" means any Security in the form established
pursuant to Section 2.01 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company or
the Executive Committee or any other committee of the Board of Directors duly
authorized to act for the Company hereunder.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered
to the Trustee.
"Business Day", except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, with respect to any Place of Payment means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a Legal Holiday in that Place of
Payment.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock.
"Company" means the party named in the first paragraph of this
Indenture until a successor replaces it pursuant to the Indenture and
thereafter means such successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, the President, the Chief Financial Officer or the Treasurer thereof or
any other officer specifically authorized to act by the Board of Directors of
the Company as certified to the Trustee, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at The Bank of New
York, 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
Corporate Trust Administration, Re: Sierra Pacific Resources.
2
<PAGE>
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" shall have the meaning set forth in Section 4.06.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default.
"Discharged" shall have the meaning set forth in Section 8.02.
"Discount Security" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
"Event of Default" shall have the meaning set forth in Section 6.01.
"Government Obligations" with respect to any series of Securities
means direct noncallable obligations of the government which issued the
currency in which the Securities of that series are denominated, noncallable
obligations the payment of the principal of and interest on which is fully
guaranteed by such government, and noncallable obligations on which the full
faith and credit of such government is pledged to the payment of the
principal thereof and interest thereon, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any
such Government Obligation or a specific payment of interest on or principal
of any such Government Obligation held by such custodian for the account of
the holder of such depositary 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 depositary receipt from any amount received by
the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depositary receipt.
"Holder" or "Securityholder" means, with respect to a Registered
Security, a Person in whose name such Security is registered on the Security
Register and, with respect to a Bearer Security or any coupon, the bearer
thereof.
"Indenture" means this Indenture, as it may from time to time be
amended or supplemented and shall include the forms and terms of particular
series of Securities established as contemplated herein.
"Independent Public Accountants" means independent public
accountants or a firm of independent public accountants who may be the
independent public accountants regularly retained by the Company or who may
be other independent public accountants. Such public accountants or firm
shall be entitled to rely upon any Opinion of Counsel as to the
interpretation of any legal matters relating to the Indenture or certificates
required to be provided hereunder.
3
<PAGE>
"Legal Holiday" shall have the meaning set forth in Section 13.07.
"Lien" means any mortgage, pledge, security interest or lien, or
other encumbrance of any nature whatsoever.
"Notice of Default" shall have the meaning set forth in Section 6.01.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Secretary thereof or any other officer
specifically authorized to act by the Board of Directors of the Company.
"Officers' Certificate" means a certificate signed by two Officers
or by an Officer other than the Secretary and an Assistant Treasurer or an
Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who
(except as otherwise expressly provided in this Indenture) may be an employee
of or counsel to or for the Company, or any other legal counsel acceptable to
the Trustee.
"Outstanding", when used with respect to Securities or a series,
shall have the meaning set forth in Section 2.08.
"Paying Agent" shall have the meaning set forth in Section 2.03.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.01 with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of and interest and any
Additional Amounts on the Securities of that series are payable as specified
as provided pursuant to Section 2.01.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," and, whenever used with reference to any Security which by its terms
provides (or as to which mandatory provisions of law provide) that less than
the principal amount thereof shall be due and payable upon a declaration of
the
4
<PAGE>
acceleration of the maturity thereof, and in the contexts of such a
declaration, of proving a claim under bankruptcy, insolvency or similar laws,
or of determining whether the holders of the requisite aggregate principal
amount of the Securities of any or all series then Outstanding have concurred
in any request, demand, authorization, direction, notice, consent, waiver or
other action by Securityholders hereunder, shall mean the portion of such
principal amount so provided to be due and payable upon a declaration of
acceleration of the maturity thereof.
"Redemption Date" means the date fixed for redemption of any
Security to be redeemed pursuant to this Indenture.
"Redemption Price" means the principal amount of any Security to be
redeemed.
"Registered Security" means any Security registered in the Security
Register.
"Registrar" shall have the meaning set forth in Section 2.03.
"Restricted Subsidiary" means any consolidated operating subsidiary
of the Company that accounts for 10% or more of the consolidated revenues
and/or assets of the Company, including but not limited to Sierra Pacific
Power Company and Nevada Power Company, and any successor to all or a
principal part of the business or properties of any thereof, and any other
subsidiary which the Board of Directors designates as a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution of this instrument such
Commission is not existing and performing the duties assigned to it under the
TIA, then the body performing such duties at such time.
"Securities" means the debt securities, as amended or supplemented
from time to time pursuant to this Indenture, that are issued under this
Indenture.
"Security Register" shall have the meaning set forth in Section 2.03.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as amended from time to time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
5
<PAGE>
"Trust Officer" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of
such person's knowledge of and familiarity with the particular subject and
who shall have direct responsibility for the administration of this Indenture.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions and
other areas subject to its jurisdiction.
"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the form
of one or more global Securities, the Person designated as U.S. Depository
pursuant to Section 2.01, which must be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and, if so provided pursuant
to Section 2.01 with respect to the Securities of any series, any successor
to such Person. If at any time there is more than one such Person, "U.S.
Depository" shall mean, with respect to any series of Securities, the
qualifying entity which has been appointed with respect to the Securities of
that series.
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances in the election of
directors, managers or trustees of such Corporation (irrespective of whether
or not at the time stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of
Securities at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
"Indenture Security Holder" means a Securityholder.
"Indenture to be Qualified" means this Indenture.
6
<PAGE>
"Indenture Trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings thereby assigned to them.
Section 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in
the plural include the singular;
(4) an accounting term not otherwise defined has the
meaning assigned to it in accordance with United States generally accepted
accounting principles; and
(5) the Article and Section headings herein and in the
Table of Contents are for convenience only and do not constitute a part of
this Indenture and shall not affect the meaning, construction or effect of
this Indenture.
ARTICLE TWO
THE SECURITIES
Section 2.01. TERMS AND FORM.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series of Securities and shall bear the title,
interest, if any, at the rates and from the dates, shall mature at the times,
may be redeemable at the prices and upon the terms, shall be denominated and
payable at the place or places and in the currency or currencies (which may
be other than United States dollars), including composite currencies, and
shall contain or be subject to such other terms as shall be approved by or
pursuant to a Board Resolution of the Company, Officers(1) Certificate, or in
one or more supplements to this Indenture.
The Securities of each series hereunder shall be in one or more
forms approved from time to time by or pursuant to a Board Resolution of the
Company, Officers(1) Certificate, or in one or more supplements to this
Indenture establishing the following:
7
<PAGE>
(1) the title or designation of the Securities and the
series in which such Securities shall be included (which, unless such
Securities constitute part of a series of Securities previously issued, shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 2.06,
2.07, 2.09 or 3.07);
(3) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or without
coupons) or both; any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of the series
may be exchanged for Registered Securities of the series; and whether any
Securities of the series are to be issuable initially in global form and, if
so, (i) whether beneficial owners of interests in any such global Security
may exchange such interest for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner specified in Section
2.09 and (ii) the name of the Depository or the U.S. Depository, as the case
may be, with respect to any global Security;
(4) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as
Bearer Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of any date or dates prior to
the exchange of such temporary Bearer Security for definitive Securities of
the series shall be paid to any clearing organization with respect to the
portion of such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will
be credited to the Persons entitled to interest payable on such date or dates;
(6) the date or dates on which the principal, and
premium, if applicable, of such Securities is payable;
(7) the rate or rates (including the rate or rates at
which overdue principal shall bear interest, if different from the rate or
rates at which such Securities shall bear interest prior to maturity and, if
applicable, the rate or rates at which overdue premium or interest shall bear
interest, if any) at which such Securities shall bear interest, if any, or
the method in which such rate or rates are determined, the date or dates from
which such interest shall accrue, the dates on which such interest shall be
payable and the record date for Holders entitled to the
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interest payable on Registered Securities on any such date, whether and under
what circumstances Additional Amounts on such Securities shall be payable
and, if so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis upon which
interest shall be calculated if other than as otherwise provided in this
Indenture;
(8) the place or places, if any, in addition to or
other than The Borough of Manhattan, The City of New York, New York where the
principal of and interest on or Additional Amounts, if any, payable in
respect of such Securities shall be payable;
(9) the period or periods within which, the price or
prices at which and the terms and conditions upon which such Securities may
be redeemed, in whole or in part, at the option of the Company;
(10) the terms of any sinking fund and the obligation,
if any, of the Company to redeem or purchase such Securities pursuant to a
sinking fund, at the option of a Holder thereof or otherwise and the period
or periods within which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or purchased in whole
or in part, pursuant to such obligation, and any provisions for the
remarketing of such Securities;
(11) the denominations in which Registered Securities
of the series, if any, shall be issuable, and the denominations in which
Bearer Securities of the series, if any, shall be issuable, in either case if
other than as otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the
portion of the principal amount of such Securities which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(13) if other than such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of or interest, if any, and any
Additional Amounts in respect of such Securities shall be payable and whether
the Securities of the series may be discharged other than as provided in
Article 8;
(14) if the principal of or interest, if any, and any
Additional Amounts in respect of such Securities are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(15) if the amount of payments of principal of or
interest, if any, or any Additional Amounts in respect of such Securities may
be determined with reference to an index, formula or other method based on a
coin or currency other than that in which the Securities are
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stated to be payable, the manner in which such amounts shall be determined
including the purpose of determining the principal amount of such Securities
deemed to be outstanding at any time;
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the
form and terms of such certificates, documents or conditions;
(17) the terms, if any, pursuant to which the
Securities of such series may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other Person.
(18) any events of default, other than those set forth
in Section 6.01, or covenants, other than those set forth in Article 4,
with respect to Securities of such series; and
(19) any other terms of the Securities (which terms
shall not be inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant
to a Board Resolution of the Company, an Officers' Certificate of the Company
delivered to the Trustee shall state that all conditions precedent relating
to the authentication and delivery of such Security have been complied with
and shall be accompanied by a copy of the Board Resolution of the Company by
or pursuant to which the form of such Security has been approved. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its
authentication. Each Security may contain any other terms as are not
inconsistent with the provisions of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as
to denomination and the rate or rates of interest, if any, the time or times
at which the principal thereof may be payable, the date from which interest,
if any, shall accrue and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in the Officers' Certificate
hereinabove described or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing
such series of Securities, as Bearer Securities, with or without coupons and,
in either case, may be issued initially, temporarily or permanently in global
form (as provided in Section 2.10). Unless the form of a Security for a
series provides otherwise, the Registered Securities shall be issued in
denominations of $1,000 or integral multiples thereof and Bearer Securities
shall be issuable in the denomination of $5,000.
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Except as otherwise specified as contemplated by this Section 2.01
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.02. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Securities and the coupons
for the Company by manual or facsimile signature. The Company's seal, if any,
may be reproduced on the Securities, but the Company's seal shall not be
required to be included on the Securities.
If an Officer whose signature is on a Security or coupon no longer
holds that office at the time the Trustee authenticates the Security, the
Security and coupon shall be valid and binding on the Company nevertheless.
The aggregate principal amount of Securities Outstanding hereunder
at any time shall be unlimited except that such Outstanding amount (exclusive
of any premium) may not exceed the amount authorized from time to time by the
Board of Directors of the Company and except as provided in Section 2.07.
Upon receipt of a Company Order for the authentication and delivery of
Securities of a series, the Trustee shall authenticate and deliver for
original issue Securities of a series as to which an Officers' Certificate of
the Company or a supplemental indenture has been delivered to the Trustee
pursuant to Section 2.01.
No Security or any coupon appertaining thereto shall be valid until
the Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security shall
be dated the date of its authentication. Bearer Securities and any temporary
Bearer Security in global form shall be dated as specified in the Officers'
Certificate of the Company or in the supplements to this Indenture
contemplated by Section 2.01. The signature of the Trustee or the
authenticating agent referred to below shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate thereof.
Except as permitted by Section 2.07, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled.
The Trustee's authentication shall be in the following form:
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Dated:
Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
[_________________________],
as Trustee
By__________________________
Authorized Signatory
If the forms and terms of the Securities of the series and any
related coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Section 2.01 and 2.02, in authenticating such
Securities and accepting the additional responsibilities under this Indenture
in relating to such Securities the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon an Opinion
of Counsel to the effect that:
(a) the form and terms of such Securities and coupons, if any,
have been duly authorized and established pursuant to Sections 2.01 and 2.02
and comply with this Indenture, and
(b) such Securities, when authenticated and delivered by the
Trustee and issued by the Company, and such coupons, if any, when issued by
the Company, in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to customary
exceptions, provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to receive such
Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such series and that the Opinion of Counsel
above may state:
(x) that the forms of such Securities have
been, and the terms of such Securities (when established in accordance with
such procedures as may be specified from time to time in a Company Order, all
as contemplated by and in accordance with a Board Resolution or any Officers'
Certificate pursuant to Section 2.01, as the case may be) will have been,
duly authorized by the Company and established in conformity with the
provisions of this Indenture;
(y) that such Securities, together with the
coupons, if any, appertaining thereto, when (1) executed by the Company, (2)
completed, authenticated and
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delivered by the Trustee in accordance with this Indenture, and (3) issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to customary
exceptions; and
(z) that all laws and requirements in respect
of the execution and delivery by the Company of such Securities have been
complied with.
(c) With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and other documents delivered pursuant to Section 2.01 and
this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until it has received
written notification that such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of
any governmental agency or commission having jurisdiction over the Company.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to existing Holders.
Section 2.03. REGISTRAR AND PAYING AGENT.
The Company shall designate a Registrar who shall maintain an office
or agency where Securities may be presented for registration of transfer and
where each series of Registered Securities may be presented for exchange
("Registrar") and a Paying Agent who shall maintain an office or agency where
Securities and coupons may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served. The Registrar shall keep
a register ("Security Register") of each series of Registered Securities and
of their transfer and exchange. The Company may have one or more
co-Registrars and one or more additional Paying Agents and shall maintain the
Registrar or a co-Registrar and a Paying Agent in each place required by
Section 4.02. The term "Paying Agent" includes any additional paying agent.
In the event that the Trustee shall not be the Registrar, it shall have the
right to examine the Security Register at all reasonable times.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or the Company fails to
maintain
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an agent for service of notices, process and demands, or the Company fails to
give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee to be the Registrar,
Paying Agent and agent for services of notices and demands.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or any interest or Additional Amounts on the
Securities, and shall notify the Trustee of any default by the Company (or
any other obligor on the Securities) in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall on or before each due
date of the principal of or any interest or Additional Amounts on any
Securities segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to pay to the Trustee all sums so held in trust by such Paying Agent.
Upon doing so the Paying Agent shall have no further liability for the money.
Section 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of Registered Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee from information in the possession or
control of the Company (a) on or before each interest payment date, as of the
relevant record date, for any series of Securities, (b) pursuant to the form
of Security for each series of non-interest bearing Securities and (c) at
such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, provided that if the provisions of (a) or (b)
do not provide for the furnishing of such information at stated intervals of
not more than six months, at least as frequently as semiannually, not later
than May 15 and November 15 of each year.
Section 2.06. TRANSFER, REGISTRATION AND EXCHANGE.
When a Registered Security is presented at an office or agency
maintained for that series pursuant to Section 4.02 in proper form for
registration of transfer with a request to register a transfer, the Registrar
or co-Registrar at that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any
series may be exchanged upon surrender to the Registrar or a co-Registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon
surrender at any office or agency maintained for that series pursuant to
Section 4.02.
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If so provided with respect to Securities of a series, at the option
of the Holder, Bearer Securities of any such series may be exchanged for
Registered Securities of the same series containing identical terms and
provisions, of any authorized denominations and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any office or
agency maintained for that series pursuant to Section 4.02, with all
unmatured coupons and all matured coupons appertaining thereto in default.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such exchange may
be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent for that series harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent for that series
any such missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that except as otherwise provided in Section 4.02,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency maintained for that series
pursuant to Section 4.02 in exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
any record date for the payment of interest and any Additional Amounts
thereon and before the opening of business at such office or agency on the
relevant payment date therefor, such Bearer Security shall be surrendered
without the coupon relating to such payment date or proposed date of payment,
as the case may be (or if such coupon is so surrendered with such Bearer
Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest will not be payable on such payment date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Registrar or
co-Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed
by the Holder thereof or his attorney duly authorized in writing. To permit
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.01, any global Security shall be exchangeable only
if (i) the Securities Depository is at any time unwilling, unable or
ineligible to continue as Securities Depository and a successor Depository is
not appointed by the Company within 90 days of the date the Company and the
Trustee is so informed in writing, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security shall be
so exchangeable, or (iii) an Event
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of Default has occurred and is continuing with respect to the Securities. If
the beneficial owners of interests in a global Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified as
contemplated by Section 2.01, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Securities shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such Depository, as the case may be, which instructions shall be in writing
but need not be accompanied by an Officers' Certificate of the Company or an
Opinion of Counsel, as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such global
Security to be exchanged which shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by
the beneficial owner thereof (unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as specified
as contemplated by Section 2.01); provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities of that series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that (unless otherwise
specified as contemplated by Section 2.01) no Bearer Security delivered in
exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to
such depository or the U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security
is issued in exchange for any portion of a global Security after the close of
business at the office or agency where such exchange occurs on any record
date for the payment of interest or any Additional Amounts thereon, and
before the opening of business at such office or agency on the relevant
payment date therefor, interest and any Additional Amounts in respect of such
Registered Security will not be payable on such payment date, but will be
payable on such payment date only to the Person to whom interest or any
Additional Amounts in respect of such portion of such global Security is
payable in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of
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transfer or exchange of Securities, other than exchanges pursuant to Section
2.09, 3.07 or 9.05 not involving any transfer.
The Company and the Trustee shall not be required (a) to issue,
register the transfer of, or exchange any Securities of any series for a
period of 15 days next preceding the day of any selection of Securities of
such series to be redeemed pursuant to Section 3.03, or (b) to register the
transfer of or exchange any Securities of any series selected, called or
being called for redemption in whole or in part except, in the case of any
Registered Security to be redeemed in part, the portion thereof not so to be
redeemed or (c) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to Securities of a series, that
such a Bearer Security may be exchanged for a Registered Security of that
series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent
with the provisions of this Indenture.
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 endorsed thereon surrendered upon such registration of transfer or
exchange.
Section 2.07. REPLACEMENT SECURITIES2.08
If the Holder of a mutilated or defaced Security or a Security with
a mutilated or defaced coupon appertaining to it surrenders such Security to
the Trustee or if the Holder of a Security presents evidence to the
satisfaction of the Company and the Trustee that the Security has been lost,
destroyed or wrongfully taken or that a coupon has been lost, stolen or
wrongfully taken and surrenders the Security to which such coupon appertains
with all appurtenant coupons not so lost, stolen or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security
of the same series and of like tenor, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security or coupon
has or is about to become due and payable, the Company may pay the Security
or coupon instead of issuing a new Security or coupon; provided, however,
that payment of principal of and any interest on and Additional Amounts with
respect to Bearer Securities shall, except as otherwise provided in Section
4.02, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 2.01, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto. If required by the Trustee or
the Company, an indemnity bond must be provided which is sufficient in the
judgment of the Company and the Trustee to protect the Company and the
Trustee or any Agent from any loss which any of them may suffer if a Security
is replaced. The Company and the Trustee may charge the Holder for their fees
and expenses in replacing a Security and for payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto.
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Every replacement Security of any series, with its coupons, if any,
is an additional obligation of the Company and shall be entitled to all of
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued under
this Indenture.
Section 2.08. OUTSTANDING SECURITIES.
Securities Outstanding at any time are all Securities authenticated
by the Trustee except for those canceled by it and those described in this
Section. A Security does not cease to be Outstanding because the Company or
one of its Affiliates holds the Security except as provided in Section 13.06.
If a Security is replaced pursuant to Section 2.07, it ceases to be
Outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a Redemption Date or maturity date
money sufficient to pay Securities payable on that date, then on and after
that date such Securities cease to be Outstanding and interest on them ceases
to accrue, provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made.
If the Company is deemed to be discharged from its obligations with
respect to the Securities of any series pursuant to Section 8.01 or 8.02, the
Securities of such series shall cease to be Outstanding.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01, as adjusted pursuant to Section 13.12 if applicable.
Section 2.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities and, if Bearer Securities, temporary coupons shall be
substantially in the form of definitive Securities and, if Bearer Securities,
definitive coupons but may have variations in form that the Company considers
appropriate for temporary Securities. In the case of Bearer Securities of any
series, such temporary Securities may be in global form representing all of
the Outstanding Bearer Securities of such series. Except in the case of
temporary Securities in global form (which shall be
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exchanged in accordance with the provisions thereof), without unreasonable
delay, the Company shall prepare definitive Securities (accompanied by any
unmatured coupons pertaining thereto) of like tenor as the temporary
Securities.
After the preparation of definitive Securities of a series, the
temporary Securities of such series shall be exchangeable upon request for
definitive Securities of such series containing identical terms and
provisions upon surrender of the temporary Securities of such series at an
office or agency of the Company maintained for such purpose pursuant to
Section 4.02, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same
series containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided pursuant to Section 2.01,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth therein. Unless otherwise specified as contemplated by
Section 2.01 with respect to a temporary global Security, until so exchanged
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such
series.
Section 2.10. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein.
Section 2.11. CANCELLATION.
The Company at any time may deliver Securities or coupons to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment
and all coupons surrendered for payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment or cancellation and
all coupons surrendered for payment and return such canceled Securities to
the Company upon Company Order, provided, however, that the Trustee shall
dispose of canceled Securities in accordance with its procedures for the
disposition of canceled securities in effect as of the date of such
disposition unless the Company directs their return to the Company. The
Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
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Section 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest or any Additional
Amounts on any series of Registered Securities, the Company shall pay the
defaulted interest and any Additional Amounts to Persons who are Holders of
Registered Securities of such series in any lawful manner. The Company may
also pay the defaulted interest to the persons who are Security holders on a
subsequent special record date in the following manner. The Company shall fix
the special record date (which shall be between 10 and 30 days before the
payment date) for the payment of such defaulted interest and any Additional
Amounts on such Securities and the payment date for such defaulted interest.
At least 15 days before the special record date, the Company shall mail each
Holder of Registered Securities, with a copy to the Trustee, a notice that
states the special record date, the payment date and the amount of defaulted
interest and any Additional Amounts to be paid, provided the Company has made
arrangements satisfactory to the Trustee for payment of the aggregate amount
to be paid on such payment date. On such payment date the Trustee shall pay
out of funds provided by the Company such defaulted interest and any
Additional Amounts. In case a Bearer Security of any series is surrendered at
the office or agency of the Company maintained pursuant to Section 4.02 in a
Place of Payment for such series in exchange for a Registered Security of
such series after the close of business at such office or agency on any
special record date and before the opening of business at such office or
agency on the related proposed date for payment of defaulted interest and any
Additional Amounts, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and defaulted interest and
any Additional Amounts will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon on or after
such payment date in accordance with the provisions of this Indenture. The
Company may pay defaulted interest and any Additional Amounts in any other
lawful manner.
Section 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered 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 Registered Security is
registered as the absolute owner of such Registered Security for the purpose
of receiving payments of principal of and (subject to Sections 2.06 and 4.01)
interest on and Additional Amounts with respect to such Registered Security
and for all other purposes whatsoever, whether or not such Registered
Security shall 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as
the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon shall be overdue, and neither
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the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 2.14. 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 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 and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE THREE
REDEMPTION
Section 3.01. APPLICABILITY OF ARTICLE.
This Article shall apply to the Securities of each series, if any,
that by their terms are subject to redemption at the option of the Company or
pursuant to the operation of a sinking fund or otherwise are required to be
redeemed pursuant to the terms of the Securities. If the terms of any
Security shall conflict with any provision of this Article, the terms of such
Security shall govern.
Section 3.02. NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. If the Company wants to redeem Securities of
any series in whole or in part pursuant to the terms of the Securities of
that series, the Company shall notify the Trustee of the Redemption Date
therefor and the principal amount and other terms and provisions of the
Securities to be redeemed. Each such notice shall be accompanied by an
Officers' Certificate of the Company stating that any conditions to such
redemption as provided in such Security and in this Article have been
complied with. If the Company elects to redeem less than all of the
Securities of a series with the same terms and provisions, the Company shall
notify the Trustee of such Redemption Date and of the principal amount of
such Securities to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 3.03.
If Securities of any series by their terms are redeemable pursuant
to the operation of a sinking fund or pursuant to another mandatory
redemption provision of the Securities, the Company shall notify the Trustee
by an Officers' Certificate of the amount of the next sinking fund payment or
amount required to satisfy such mandatory redemption payment and the portion
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of such payment which is to be satisfied by delivering and crediting
Securities of the same series pursuant to Section 3.06.
If the Company wants to reduce, pursuant to the terms of such
Securities, the principal amount of Securities to be redeemed, it shall
notify the Trustee by Officers' Certificate of the amount of the reduction
and the basis for it. If the Company wants to credit against any such
redemption Securities of the same series it has not previously delivered to
the Trustee for cancellation, it shall deliver the Securities with such
Officers' Certificate.
The Company shall give each notice and an Officers' Certificate
provided for in this Section at least 45 days before the applicable
Redemption Date (unless shorter notice is satisfactory to the Trustee or a
shorter or longer notice is required by the applicable Security).
Section 3.03. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of a series with the same terms and
provisions are to be redeemed, the Trustee shall select the Securities to be
redeemed by a method the Trustee considers fair and appropriate. The Trustee
shall make the selection from such Securities Outstanding not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Registered Securities of such series that have denominations
larger than the minimum authorized denominations for Registered Securities of
that series. Securities and portions thereof the Trustee selects shall be in
amounts equal to the smallest authorized denominations or an integral
multiple thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Registered Securities called
for redemption.
The Trustee shall promptly notify the Company and the Registrar (if
other than itself) 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, 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 of such Securities which has been or is
to be redeemed.
Section 3.04. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date
(unless a shorter or longer period is specified in the Securities to be
redeemed), the Company shall give notice of such redemption to the Holders of
the Securities to be redeemed as a whole or in part, with a copy to the
Trustee, with respect to Registered Securities, by mailing a notice of such
redemption by first-class mail to each Holder of Registered Securities to be
redeemed and, with respect to
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Bearer Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price, including premium, if any,
accrued interest and Additional Amounts, if any;
(3) if less than all Securities of a series
Outstanding are to be redeemed, the identification (and, if any Security is
to be redeemed in part, the principal amount) of the particular Securities to
be redeemed;
(4) the name or names and address or addresses of the
Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price, including
premium, if any, accrued interest and Additional Amounts, if any;
(6) that interest on Securities called for redemption
ceases to accrue on and after the Redemption Date;
(7) that the redemption is pursuant to a sinking fund,
if such is the case;
(8) the Place or Places of Payment where such
Securities are to be surrendered for payment for the Redemption Price;
(9) the CUSIP number, if any, of the Securities; and
(10) such other matters as the Company shall deem
desirable or appropriate.
At the Company's request delivered to the Trustee at least 15 days
prior to the date proposed for the giving of such notice, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense.
Section 3.05. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is given pursuant to Section 3.04,
Securities called for redemption shall become due and payable on the
Redemption Date therefor and at the applicable Redemption Price. Any failure
to mail notice of redemption or any defect therein shall not affect the
redemption of any other Securities called for redemption. Upon surrender to
the Paying Agent for such Securities of such Securities together with all
unmatured coupons, if any,
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appertaining thereto, such Securities shall be paid at the applicable
Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts payable with respect thereto; provided, however, that any
regular payment of interest and any Additional Amounts payable with respect
thereto becoming due on the Redemption Date shall be payable, in the case of
Bearer Securities, to bearers of the coupons for such interest and Additional
Amounts upon surrender thereof and in the case of Registered Securities to
the Holders of such Securities in accordance with their terms.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
each missing coupon or coupons may be waived by the Company and the Trustee
if there shall be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent for such Security harmless.
If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent for such Security any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest (and any Additional Amounts) represented by coupons shall be payable
only upon presentation and surrender of these coupons at an office or agency
located outside of the United States except as otherwise provided in Section
4.02.
Section 3.06. DEPOSIT OF REDEMPTION PRICE OR SECURITIES.
By 10:00 a.m. New York City time, on or before the Redemption Date,
the Company shall deposit with the applicable Paying Agent (or if the Company
is its own Paying Agent, shall segregate and hold in trust) money sufficient
to pay the Redemption Price of and accrued interest and Additional Amounts,
if any, on all Securities to be redeemed on that date.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the
Company shall deliver such Securities to the Trustee for crediting against
such payment obligation in accordance with the terms of such Securities and
this Indenture.
Section 3.07. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part at any office
or agency maintained by the Company pursuant to Section 4.02, the Company
shall execute and Trustee shall authenticate for the Holder a new Security of
the same series equal in principal amount to the unredeemed portion of the
Security surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Company Order to the Trustee with
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respect thereto, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and any interest or
Additional Amounts, if any, and premium, if any, on the Securities of each
series on the dates and in the manner provided in the Securities, any coupons
appertaining thereto and this Indenture. At the Company's option, it can pay
any interest or Additional Amounts, if any, or premium, if any, on Registered
Securities of any series by mailing checks or drafts to the Holders of such
Securities at their addresses as shown in the Security Register. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on
or before their maturity, in respect of the principal of such a Security
shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature.
The Company shall pay interest on overdue principal of any Security
at the rate borne by such Security; it shall pay interest on overdue
installments of interest or Additional Amounts, if any, or premium, if any,
at the same rate to the extent lawful.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any record date
established to determine the Person to whom interest or Additional Amounts
are payable on the next following interest payment date therefor and before
the opening of business (at such office or agency) on such interest payment
date, such Bearer Security shall be surrendered without the coupon relating
to such interest payment date and interest will not be payable on such
interest payment date in respect of the Registered Security issued in
exchange of such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series (but not
Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) may be presented or surrendered
for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture
may be served.
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If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and the
related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of such series);
provided, however, that if the Securities of such series are listed on The
International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent in London, Luxembourg or any other
city so required located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The
Company will 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, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Bearer Securities of that
series) at the place specified for that purpose pursuant to Section 2.01.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however,
payment of principal of and interest in U.S. dollars (including Additional
Amounts payable in respect thereof) on any Bearer Security may be made at the
office of the Paying Agent in the Borough of Manhattan, The City of New York,
New York, if (but only if) payment of the full amount of such principal,
interest or Additional Amounts at all offices outside the United States
maintained for that purpose by the Company in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will 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.
Section 4.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of, or interest or Additional
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Amounts on, any of the Securities of that series, segregate and hold in trust
for the benefit of the Person entitled thereto a sum sufficient to pay the
principal or interest or Additional Amounts 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 for any
series of Securities, it will, by 10:00 a.m. New York City time, on or prior
to each due date of the principal of, or interest or Additional Amounts on,
any Securities of that series, deposit with any Paying Agent a sum sufficient
to pay the principal or interest and Additional Amounts so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, interest or Additional Amounts, 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 for any series of
Securities 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, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of or interest or any Additional Amounts on Securities of that
series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any Default by the
Company in the making of any payment of principal or interest or any
Additional Amounts on the Securities of that series; and
(3) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
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 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 terms 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.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of or interest or any Additional
Amounts on any Security of any series and remaining unclaimed for one year
after such principal or interest has or Additional Amounts have become due
and payable shall be paid to the Company upon receipt of a Company Order to
that effect, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or any coupon
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appertaining thereto 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, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment or to be mailed to Holders
of Registered Securities, 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 or mailing nor shall it be later than
one year after such principal or interest or Additional Amount has become due
and payable, any unclaimed balance of such money then remaining shall be
repaid to the Company.
Section 4.04. SEC REPORTS.
The Company shall file with the Trustee within 15 days after it
files them with the SEC copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended. The Company also shall
comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.05. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, commencing April 30, 2001 (no more than
one year after closing), a written statement, which need not comply with
Section 13.05 hereof, signed by a principal executive officer, principal
financial officer or principal accounting officer, stating, as to the signer
thereof, that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such
review, (a) the Company has fulfilled its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of Default,
or, if such an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
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(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within ten days after the Company obtains knowledge
of the occurrence thereof, written notice of any Default and the action which
the Company proposes to take with respect thereto.
Section 4.06. LIMITATIONS ON LIENS ON STOCK OF RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, issue, assume or guarantee any debt for money borrowed (hereafter in this
Section referred to as "Debt") secured by a mortgage, security interest,
pledge, lien or other encumbrance upon any shares of stock of any Restricted
Subsidiary (whether such shares of stock are now owned or hereafter acquired)
without in any such case effectively providing concurrently with the
issuance, assumption or guarantee of any such Debt that the Securities
(together with, if the Company shall so determine, any other indebtedness of
or guarantee by the Company ranking equally with the Securities and then
existing or thereafter created) shall be secured equally and ratably with
such Debt.
Section 4.07. LIMITATIONS ON ISSUE OR DISPOSITION OF STOCK OF
RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, issue, sell, assign, transfer or otherwise dispose of, directly or
indirectly, any of the Capital Stock (other than nonvoting preferred stock)
of any Restricted Subsidiary (except to the Company or to one or more
Restricted Subsidiaries or for the purpose of qualifying directors);
provided, however, that this covenant shall not apply if:
(1) all or any part of such Capital Stock is sold,
assigned, transferred or otherwise disposed of in a transaction for
consideration which is at least equal to the fair value of such Capital
Stock, as determined by the Board of Directors (acting in good faith); or
(2) the issuance, sale, assignment, transfer or other
disposition is required to comply with the order of a court or regulatory
authority of competent jurisdiction, other than an order issued at the
request of the Company or of one of its Restricted Subsidiaries.
Section 4.08. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities, and to notify the Trustee in writing of
any such payment and the record date thereof. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or any
Coupon or the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series established hereby
or pursuant hereto to the extent that, in such context, Additional Amounts
are,
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were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding the payment of
Additional Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide
for the payment of Additional Amounts, at least 10 days prior to the first
interest payment date with respect to such series of Securities (or if the
Securities of such series shall not bear interest prior to maturity, the
first day on which a payment of principal is made), and at least 10 days
prior to each date of payment of principal or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish to the Trustee and the principal
Paying Agent or Paying Agents, if other than the Trustee, an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and premium, if any, or interest on the
Securities of such series shall be made to Holders of Securities of such
series or the Coupons appertaining thereto who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officers' Certificate shall specify
by country the amount, if any, required to be withheld on such payments to
such Holders of Securities or Coupons, and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them
in reliance on any Officers' Certificate furnished pursuant to this Section.
Section 4.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance, to comply with any
covenant or condition set forth in Sections 4.06 or 4.07, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of all Outstanding Securities, and the Holders of at least a majority
in principal amount of the Outstanding Securities of each series to be
affected, shall 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 condition 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 4.10. INFORMATION REGARDING 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 submitted by
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the Company with the Internal Revenue Service and the Holders of Discount
Securities relating to original issue discount, including, without
limitation, Form 1099-OID or any successor form.
ARTICLE FIVE
SUCCESSOR CORPORATION AND ASSUMPTION
Section 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge into, or sell, lease
(for a term extending beyond the last stated maturity of the Securities then
Outstanding) or convey all or substantially all of its assets to, another
Person unless the successor or transferee Person expressly assumes by
supplemental indenture, in form satisfactory to the Trustee, all the
obligations of the Company with respect to the Securities and this Indenture,
and the Company or successor Corporation, as the case may be, (i) shall be a
Corporation organized under the laws of one of the states in the United
States and (ii) shall not, immediately after such consolidation or merger or
sale, lease or conveyance, be in default in the performance of any covenant
or condition with respect to the Securities or the Indenture. The Company
shall deliver to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Indenture. Thereafter all such
obligations of the predecessor corporation shall terminate.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease or conveyance
of all or substantially all of the assets of the Company in accordance with
Section 5.01, the successor Corporation formed by such consolidation or into
which the Company is merged or to which such transfer is made 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 successor
Corporation had been named as the Company herein.
Section 5.03. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or restrict:
(a) any consolidation or merger after the consummation of which the Company
would be the surviving or resulting entity or any conveyance or other
transfer or lease of any part of the properties of the Company which does not
constitute the entirety, or substantially the entirety, thereof; or (b) the
approval by the Company of, or the consent by the Company to, any
consolidation or merger to which any Restricted Subsidiary (or any other
subsidiary or affiliate of the Company) may be a party or any conveyance,
transfer or lease by any Subsidiary (or any such other subsidiary or
affiliate) of any of its assets.
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ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to the Securities of any
series upon:
(a) default in the payment of any installment of interest upon
or any Additional Amounts payable in respect of any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise
(except the failure to make payment when due and payable if such failure
results solely from nonpayment by reason of mistake, oversight or transfer
difficulties and does not continue beyond 3 Business Days after the day on
which such payment is due and payable); or
(c) default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the Securities
of such series (except the failure to make payment when due and payable if
such failure results solely from nonpayment by reason of mistake, oversight
or transfer difficulties and does not continue beyond 3 Business Days after
the day on which such payment is due and payable); or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
(determined pursuant to Section 2.08) of all series affected thereby, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises entering a
decree or order for relief in respect of the Company in an involuntary case
under the Bankruptcy Law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(f) the Company commencing a voluntary case under any
applicable Bankruptcy Law now or hereafter in effect, or consent to the entry
of an order for relief in an involuntary case under any such law, or consent
to the appointment of or taking possession by a receiver,
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liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of its property, or
making any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental
indenture or Board Resolutions under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b), (c) or (d)
above (if the Event of Default under clause (d) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then,
and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Securities of such series then Outstanding hereunder (each such series
voting as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable. If an Event of Default described in Clause (d) (if the Event
of Default under clause (d) is with respect to all series of Securities then
Outstanding), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal
(or, if any Securities are Discount Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon and Additional Amounts payable in
respect thereof, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however are subject to the condition that
if, at any time after the principal (or, if the Securities are Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon and any Additional Amounts payable in respect of all the Securities of
such series (or of all the Securities, as the case may be) and the principal
of any and all Securities of such series (or of all the Securities, as the
case may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest or
any Additional Amounts, at the same rate as the rate of interest or Yield to
Maturity (in the case of Discount Securities) specified in the Securities of
such series (or at the respective rates of
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interest or Yields to Maturity of all the securities, as the case may be, to
the date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of negligence or bad faith, and if
any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein --
then the Holders of a majority in aggregate principal amount of all the
Securities of such series, each series voting as a separate class (or of all
the Securities, as the case may be, voting as a single class) then
Outstanding, by written notice to the Company and to the Trustee, may waive
all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Discount
Securities.
Section 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY
PROVE DEBT.
The Company covenants that (a) in the case default shall be made in
the payment of any installment of interest on or any Additional Amounts
payable in respect of any of the Securities of any series when such interest
or Additional Amounts shall have continued for a period of 30 days or (b) in
case principal shall have become due and payable, and such default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series, or upon any
redemption or by declaration or otherwise -- then, upon demand of the
Trustee, the Company will pay to the Trustee for the benefit of the Holders
of the Securities of such series the whole amount that then shall have become
due and payable on all Securities of such series, and such coupons, for
principal, interest or Additional Amounts, if any, as the case may be (with
interest to the date of such payment upon the overdue installments of
interest or any Additional Amounts at the same rate as the rate of interest
or Yield to Maturity (in the case of Discount Securities) specified in the
Securities of such series); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and predecessor Trustee
except as a result of its negligence or bad faith.
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In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceeding at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other
obligor upon such Securities and collect in the manner provided by law out of
the property of the Company or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company
or any other obligor upon the Securities under Bankruptcy Law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Company or other
obligor upon the Securities or any series, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal, interest (or, if the Securities of any series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) and any Additional Amounts owing and unpaid in respect
of the Securities of any series, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon the Securities of
any series, or to the creditors or property of the Company or such other
obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make payments
to the Trustee, and in the event that the Trustee shall consent to the making
of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor trustee and their
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respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the trustee and each
predecessor Trustee except as a result of negligence or bad faith and all
other amounts due to the Trustee or any predecessor Trustee under this
Indenture.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of
the Securities of such series or coupons appertaining to such Securities or
the production thereof at any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery or judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities or of
coupons appertaining to such Securities in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
Holders of the Securities or coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or coupons appertaining to such Securities
parties to any such proceedings.
Section 6.03. APPLICATION OF PROCEEDS.
Any moneys collected by the Trustee pursuant to this Article with
respect to the Securities of any series shall be applied in the following
order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal, interest or any
Additional Amounts, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereof the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid.
FIRST: to the Trustee and any predecessor Trustee for amounts due
under Section 7.07.
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SECOND: to the Holders of Securities of such series or coupons
appertaining thereto for amounts due and unpaid on the Securities and coupons
for principal, interest and Additional Amounts, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
Securities and coupons for principal, interest and Additional Amounts,
respectively; and
THIRD: to the Person or Persons lawfully entitled thereto.
Section 6.04. SUITS FOR ENFORCEMENT.
In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained
in this Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Section 6.05. RESTORATION OF RIGHTS ON ABANDONMENTS OF PROCEEDINGS.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discounted or abandoned
for any reason, or shall have been determined adversely to the Trustee, then
and in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Securityholders shall
continue as though no such proceedings had been taken.
Section 6.06. LIMITATIONS ON SUITS BY SECURITYHOLDERS.
No Holder of any Security of any series or of any coupon
appertaining thereto shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or
in equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of a
Continuing Event of Default, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and the Holders of a majority in principal amount
of the outstanding Securities [of such series] shall have not given the
Trustee a direction inconsistent with such request, it being understood and
intended, and
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being expressly covenanted by the taker and Holder of every Security or
coupon with every other taker and Holder and the Trustee, that no one or more
Holders of Securities of any series or coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other such Holder of Securities or coupons appertaining to
such Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit
of all Holders of Securities of the applicable series and coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 6.07. UNCONDITIONAL RIGHT OF SECURITYHOLDER TO INSTITUTE
CERTAIN SUITS.
Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or coupon
to receive payment of the principal of, interest on and any Additional
Amounts in respect of such Security or coupon on or after the respective due
dates expressed in such Security or coupon, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 6.08. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT.
Except as provided in Section 6.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities
or coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.06, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of Securities or
coupons.
Section 6.09. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a separate
class) at the time Outstanding shall have the right
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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 with respect to the Securities of such series by this
Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised
by counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of two or more directors or
responsible officers of the Trustee, which may include Trust Officers, shall
determine that the action or proceedings so directed would involve the
Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
Section 6.10. WAIVER OF PAST DEFAULTS.
Prior to the declaration of the acceleration of the maturity of the
Securities of any series as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Securities of such series at
the time Outstanding may on behalf of the Holders of all the securities of
such series waive any past default or Event of Default described in clause
(c) of Section 6.01 (or, in the case of an event specified in clause (d) of
Section 6.01 which relates to less than all series of Securities then
Outstanding, the Holders of a majority in aggregate principal amount of the
Securities then Outstanding affected thereby (each series voting as a
separate class) may waive any such default or Event of Default, or, in the
case of an event specified in clause (d) (if the Event of Default under
clause (d) relates to all series of Securities then Outstanding), (e) or (f)
of Section 6.01 the Holders of Securities of a majority in principal amount
of all the Securities then Outstanding (voting as one class) may waive any
such default or Event of Default), and its consequences except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of
any such waiver, the Company, the Trustee and the Holders of the Securities
of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
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Section 6.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD
IN CERTAIN CIRCUMSTANCES.
The Trustee shall, within ninety days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any Bearer
Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Place of Payment,
(ii) if any Bearer Securities of that series are then Outstanding, to all
Holders thereof who have filed their names and addresses with the Trustee, by
mailing such notice to such Holders at such addresses and (iii) to all
Holders of then Outstanding Registered Securities of that series, by mailing
such notice to such Holders at their addresses as they shall appear in the
registry books, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults") for
the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the
payment of the principal of or interest or Additional Amounts, if any, on any
of the Securities of such series or in the payment of any sinking or purchase
fund installment, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee comprised of two or more directors or trustees and/or responsible
officers of the Trustee, which may include Trust Officers, in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 6.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO
PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security
or coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, the filing by any
party litigant in such suit (other than the Trustee) of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of such series, or, in the case of any suit relating
to or arising under clause (d) of Section 6.01 (if the suit relates to
Securities of more than one but less than all series), 10% in aggregate
principal amount of Securities Outstanding affected thereby, or in the case
of any suit relating to or arising under clause (d) (if the suit under clause
(d) relates to all the Securities then Outstanding), (e) or (f) of Section
6.01, 10% in aggregate principal amount of all Securities Outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
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The Holders of a majority in principal amount of the Outstanding
Securities of such series by notice to the Company and the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default with respect to the Securities of such series, other than the
non-payment of the principal of the Securities which have become due solely
by such declaration of acceleration, have been cured or waived, (ii) the
Company has paid or deposited with the Trustee a sum sufficient to pay the
whole amount then due and payable on such Securities and any coupons
appertaining thereto for principal and interest and Additional Amounts, if
any, with interest upon the overdue principal and, to the extent that payment
of such interest shall be legally enforceable, upon overdue installments of
interest or any Additional Amounts, at the rate or rates borne by or provided
for in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and (iii) the rescission would not conflict
with any judgment or decree. No such rescission shall have any effect on any
subsequent default or impair any right consequent thereon.
Section 6.13 WAIVER OF STAY OR EXTENSION LAWS.
The Company (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any 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 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 SEVEN
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers hereunder and use the same
degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee shall perform only those duties that
are specifically set forth in this Indenture and no others, and no implied
covenants of obligations shall be read into this Indenture against the
Trustee.
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(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. The Trustee, however, shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or officers of the
Trustee, which may include Trust Officers, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.09.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability other than for its own negligence, willful misconduct or bad faith,
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.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated except to the extent required by law. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may
agree with the Company.
(g) The Trustee shall not be liable with respect to any action
taken or omitted to be taken or with respect to exercising any trust or power
conferred upon the Trustee, under this Indenture, by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series given pursuant to Section
6.09 of this Indenture, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee; and
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Every provision in this Indenture relating to the conduct of or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the Trust
Indenture Act.
Section 7.02. RIGHTS OF TRUSTEE.
Except as provided in Section 7.01:
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person
or Persons. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate of the Company or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith and in reliance on such Officers' Certificate or Certificates or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) Any demand, request, direction or notice from the Company
mentioned herein shall, unless otherwise specifically provided, 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.
(f) The Trustee may consult with counsel of its selection and
the 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.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine, to the extent necessary and consistent with
each inquiry or investigation, the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation.
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(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder; and
(j) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles or
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized
to sign an Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however,
must comply with Sections 7.10 and 7.11.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities; it shall not be accountable for the
Company's use of the Securities or the proceeds from the Securities; and it
shall not be responsible for any statement in the Securities other than its
certificate of authentication.
Section 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to Securities and
if it is actually known to the Trustee, the Trustee shall give to each Holder
of Securities of any series to which such Default relates, in the manner and
to the extent provided in TIA Section 313(c), and otherwise as provided in
Section 13.02 of this Indenture, notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest or Additional Amounts, if any, on a Security of any series, or in
the payment of any sinking or purchase fund installment, the Trustee may
withhold the notice if and so long as the board of directors of the Trustee,
the executive committee or a trust committee of directors and/or of
responsible officers, which may include Trust Officers, of the Trustee in
good faith determines that withholding the notice is in the interests of
Holders of Securities of such series or the coupon appertaining thereto.
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Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Securityholder a
brief report dated as of such May 15 that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b)(2). Reports to Holders
pursuant to this Section 7.06 shall be transmitted in the manner and to the
extent provided in TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities
are listed.
The Company agrees to notify the Trustee whenever the Securities of
any series become listed on any stock exchange or any delisting thereof.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
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). The Company shall reimburse the Trustee and any
predecessor Trustee upon request for all reasonable out-of-pocket expenses
and advances incurred or made by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel. The
Company shall indemnify each of the Trustee and any predecessor Trustee and
their agents against any loss damage claim, expense or liability (including
legal fees and expenses) incurred by it in connection with the acceptance and
administration of the trust and the performance of its duties hereunder,
including the costs and expenses and disbursements of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against it for which it may seek
indemnity; provided, however, that the failure to give the Company any notice
of any claim shall not in any way affect the rights of the Trustee hereunder
to indemnification for such claim. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or any
predecessor Trustee to the extent due to its own negligence, willful
misconduct or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal
of or interest or Additional Amounts, if any, on the Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01 (e) and (f) occurs, the expenses and the
compensation for services are intended to constitute expenses of
administration under any Bankruptcy Law. The term "Bankruptcy Law" means
Title 11, U.S. Code.
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The provisions of this Section 7.07 shall survive termination of
this Indenture or the resignation and removal of the Trustee.
For purposes of this Section, the term "Trustee" shall include any
predecessor Trustee, provided that any Trustee hereunder shall not be liable
for the willful misconduct, negligence or bad faith of any other Trustee
hereunder.
Section 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Outstanding Securities may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with
respect to the Securities. The Company may by or pursuant to a Board
Resolution remove the Trustee with respect to all Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As soon as possible
after that, the retiring Trustee shall, upon payment of its charges, transfer
all property held by it as Trustee to the successor Trustee, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall give notice of its succession to
each Holder of Securities.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, at the
Company's expense, the Company or the Holders of a majority in principal
amount of the Outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
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If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor Trustee, provided such corporation shall be otherwise
qualified and eligible under this article.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report
of condition. If any series of Securities is admitted to trading on the New
York Stock Exchange, Inc., or any successor thereto, the Trustee shall
maintain an office or agency in The Borough of Manhattan, The City of New
York, New York as long as such series of Securities shall be so admitted. The
Trustee shall comply with TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated. For the purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" shall have the meaning provided in Rule
11(b)-4 under the Trust Indenture Act, and (b) the term"self-liquidating
paper" shall have the meaning provided in Rule 11(b)-6 under the Trust
Indenture Act.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
The Company may terminate all of its obligations under the
Securities of any series and this Indenture with respect to such series if
all Securities of such series previously authenticated and delivered (other
than destroyed, lost or stolen Securities of such series which have been
replaced or paid) and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 2.06, (ii) Securities
and coupons which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07, and (iii) Securities and
coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 4.03 or 8.04)
have been delivered to the Trustee for cancellation or if:
(1) the Securities of such series mature within one
year or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of redemption;
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(2) the Company irrevocably deposits in trust with the
Trustee money or Government Obligations sufficient to pay principal of and
any interest and Additional Amounts on the Securities of such series to
maturity or redemption, as the case may be (other than moneys paid to the
Company or discharged from trust in accordance with Section 4.03 or 8.04); and
(3) the Company shall have 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.
The Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
7.07, 7.08, and 8.03 with respect to the Securities of such series, however,
shall survive so long as any principal of, interest, if any, or any
Additional Amounts on the Securities of such series, and coupons appertaining
thereto, remains unpaid. Thereafter the Company's obligations in Section 7.07
shall survive.
After a deposit of such moneys, and delivery of the Officers'
Certificate and Opinion of Counsel required by clause (3) above, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving
obligations specified above.
Section 8.02. TERMINATION OF THE COMPANY'S OBLIGATIONS UNDER
CERTAIN CIRCUMSTANCES.
Unless otherwise provided in a Board Resolution of the Company
delivered to the Trustee pursuant to Section 2.01 or an indenture
supplemental hereto with respect to the Securities of any series, the
Company, at its option, either (a) shall be deemed to have been Discharged
(as defined below) from its obligations with respect to the Securities of any
series, and coupons appertaining thereto, on the ninety-first day after the
applicable conditions set forth below have been satisfied or (b) shall cease
to be under any obligation to comply with any term, provision or condition
set forth in Sections 4.04, 4.05, 4.06 and 4.07 and Sections 6.01 and 6.02 as
they relate to Section 6.01(d), with respect to the Securities of any series
and any coupons appertaining thereto and any other covenants provided in the
Board Resolution of the Company (except Section 7.07) delivered to the
Trustee pursuant to Section 2.01 or an indenture supplemental hereto with
respect to the Securities of such series and any coupons appertaining thereto
at any time after the applicable conditions set forth below have been
satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders
of the Securities of such series and any coupons appertaining thereto (A)
money in an amount, or (B) Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms
will provide, not later than one day (or, if such day is a Legal Holiday, the
first day preceding such day which is not a Legal
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Holiday) before the due date of any payment, money in an amount, or (C) a
combination of (A) and (B), sufficient, in the opinion of a recognized firm
of Independent Public Accountants selected by the Company expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund payments) of,
and interest, if any, and Additional Amounts, if any, on the Outstanding
Securities of such series on the dates such installments of principal,
interest, if any, and Additional Amounts, if any, are due (taking into
account any redemption pursuant to optional sinking fund payments notice of
which redemption is provided to the Trustee at the time of the deposit
referred to in this paragraph (1));
(2) if the Securities of such series are then listed
on the New York Stock Exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise of
its option under this paragraph would not cause such Securities to be
delisted;
(3) no Event of Default, or event which with the
giving of notice or lapse of time, or both, would become an Event of Default,
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit and the Company shall have furnished
to the Trustee an Officers' Certificate to such effect; and
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for United States Federal
income tax purposes as a result of the exercise of the option under this
Section 8.02 and will be subject to United States 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 option had not been exercised, and, in the case of
Securities being Discharged, such opinion shall be accompanied by a private
letter ruling to that effect received from the United States Internal Revenue
Service or a revenue ruling pertaining to a comparable form of transaction to
that effect published by the United States Internal Revenue Service.
"Discharged" means, for purposes of this Section 8.02, that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the Securities of any series and to
have satisfied all the obligations under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Company,
shall execute such instruments as may be requested by the Company
acknowledging the same), except (A) the rights of Holders of Securities of
such series or the coupons, if any, appertaining thereto, as the case may be,
to receive, solely from the trust fund described above, payment of the
principal of and interest, if any, and Additional Amounts, if any, on such
Securities when such payments are due; (B) the Company's obligations with
respect to such Securities under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07,
7.08 and 8.03; and (C) the rights, powers, duties and immunities of the
Trustee hereunder. Notwithstanding the satisfaction and discharge of this
Indenture with respect to any series of Securities, the obligations of the
Company to the Trustee and any predecessor Trustee under Section 7.07 shall
survive.
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Section 8.03. APPLICATION OF TRUST MONEY.
All moneys and Government Obligations deposited with the Trustee
pursuant to Sections 8.01 and 8.02 and, with respect to Government
Obligations, the principal and interest in respect thereof, with respect to
Securities of any series shall be held irrevocably in trust and applied by it
to the payment in accordance with the provisions of the Securities of such
series and this Indenture, either directly or through any Paying Agent for
the Securities of that series (including the Company if acting as its own
Paying Agent), to the Holders of the Securities of such series or the
coupons, if any, appertaining thereto, as the case may be, for the payment or
redemption of which such money has been deposited with the Trustee, of all
sums due and to become due thereon for principal, interest, if any, and
Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Section 8.04. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company
upon delivery of a Company Order any excess money or securities held by them
at any time under this Article Eight. Any money deposited with the Trustee or
any Paying Agent, or then held by the Company, under this Article Eight in
trust for the payment of the principal of, interest or Additional Amounts, if
any, on any Security and remaining unclaimed for two years after such
principal, interest or Additional Amounts have become due and payable shall
be paid to the Company on 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, and all liability of the Company as trustee thereof,
shall thereupon cease.
Section 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited Government
Obligations or the principal and interest received on such Government
Obligations.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee
may amend or supplement this Indenture or the Securities without notice to or
consent of any Securityholder:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property or
assets;
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(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Five;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of Directors
and the Trustee shall consider to be for the protection of the Holders of
Securities or coupons appertaining thereto, and to make the occurrence, or
the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for immediate enforcement upon such an Event of
Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default.
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Board of
Directors may deem necessary or desirable, provided that no such action shall
adversely affect the interests of the Holders of the Securities or coupons
appertaining thereto;
(e) to establish the form or terms of Securities of any series
or of the coupons appertaining to such Securities as permitted by Section
2.01;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series;
(g) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions (including restrictions relating to
payment in the United States) on the payment of principal of any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to
permit the issuance of Securities in uncertificated form, provided that any
such actions shall not adversely affect the interest of the Holders of the
Securities of any series or any related coupons in any material respect; or
(h) to add to, change or eliminate any of the provisions of
this Indenture (which addition, change or elimination may apply to one or
more series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security or any series created
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prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
Section 9.02. WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of the
principal amount of the Securities at the time Outstanding in each series
affected by such supplemental indenture (voting as one class), the Company,
when authorized by a resolution of its Board of Directors, and the Trustee
may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the coupons appertaining
to such Securities; provided, that no such supplemental indenture shall,
without the consent of each Securityholder affected:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver or reduce the requirements of
Section 11.09 establishing a quorum or voting or amend this Section 9.02;
(2) reduce the rate or rates of or extend the time for
payment of interest or Additional Amounts, if any, on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) modify or effect in any manner adverse to the
Holders of Securities the terms and conditions of the obligations of the
Company hereunder;
(5) waive a default in the payment of the principal of
or interest or Additional Amounts, if any, on any Security;
(6) impair the right to institute suit for the
enforcement of any payment on or with respect to any series of Securities;
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(7) change a Place of Payment; or
(8) make any Security payable in currency other than
that stated in the Security.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the coupons appertaining to
Securities of such other series.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give a notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security Register, (ii) if any Bearer Securities of a series
affected thereby are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to
the Trustee and (iii) if any Bearer Securities of a series affected thereby
are then Outstanding, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Place of Payment, and
in each case such notice shall set forth in general terms the substance of
such supplemental indenture. Any failure the Trustee to give such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
A consent to an amendment, supplement or waiver to any other action
hereunder by a Holder of a Security of any series shall bind the Holder and
every subsequent Holder of a Security or portion of a Security of that series
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to his Security or
portion of a
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Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver or
other action becomes effective.
After an amendment, supplement or waiver with respect to a series of
Securities becomes effective, it shall bind every Holder of Securities of
that series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to take any
action under this Indenture by vote or consent. If such record date is
fixed, the Company shall notify the Trustee of such date. Such record date
shall be the later of 30 days prior to the first solicitation of such consent
or vote or the date of the most recent list of Holders of the affected
Securities furnished to the Trustee pursuant to Section 2.05 prior to such
solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such
persons continue to be Securityholders after such record date.
Section 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may request the Holder of the Security to deliver it to
the Trustee. The Trustee may then place an appropriate notation on the
Security about the changed terms and return it to the Holder. Alternatively,
if the Company so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities (present or potential), or immunities
of the Trustee. If it does, the Trustee may but need not sign it. In signing
such amendment or supplement, the Trustee shall be entitled to receive and
(subject to Sections 7.01 and 7.02) shall be fully protected in relying upon
an Opinion of Counsel stating that such amendment or supplement is authorized
or permitted by this Indenture.
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ARTICLE TEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.01. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of Securities pursuant to such option of the Holder to require repayment of
Securities before their maturity shall not operate as a payment, redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the same to the
Trustee with a directive that such Securities be canceled. Notwithstanding
anything to the contrary contained in this Article Ten, in connection with
any repayment of Securities, the Company may arrange for the purchase of any
Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an amount
not less than the repayment price payable by the Company on repayment of such
Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment
is so paid by such purchasers.
ARTICLE ELEVEN
CONCERNING THE SECURITYHOLDERS
Section 11.01. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of
Sections 11.06 through 11.11, or a combination of such instruments such
record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, be sufficient for any purpose of this Indenture and (subject to
Section 7.02) conclusive
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in favor of the Trustee and the Company, if made in the manner provided in
Section 11.02. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 11.11.
Section 11.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
The execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution
is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same. The fact of the holding by any
Holder of a Bearer Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust
company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the
Trustee to be satisfactory. Each such certificate shall be dated and shall
state that on the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such trust company,
bank, banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or more
Bearer Securities of one or more series specified therein. The holding by the
person named in any such certificate of any Bearer Security or Securities of
any series specified therein shall be presumed to continue for a period of
one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Security or Securities shall be produced, or
(2) the Security or Securities of such series specified in such certificate
shall be produced by some other person, or (3) the Security or Securities of
such series specified in such certificate shall have ceased to be
Outstanding. Subject to Section 7.02, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any series
held by the person so executing such instrument and the amount and numbers of
any Security or Securities for such series may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of
the Security Registrar.
(c) 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
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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.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to an Officers' Certificate
delivered to the Trustee, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities or Outstanding Securities of the series,
as the case may be, shall be computed as of such record date.
Section 11.03. HOLDERS TO BE TREATED AS OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Security shall be registered
upon the Security Register for such series as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of
receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest on and any Additional Amounts payable
in respect of such Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Holder of any Bearer
Security and the Holder of any coupon as the absolute owner of such Bearer
Security or coupon (whether or not such Bearer Security or coupon shall be
overdue) for the purpose of receiving payment thereof or on account thereof
and for all other purposes and neither the Company, the Trustee, nor any
agent of the Company or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security
or coupon.
None of the Company, the Trustee or any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 11.04. SECURITIES OWNED BY COMPANY DEEMED NOT OUTSTANDING.
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In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have
concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Company or any other obligor on the
Securities with respect to which such determination is being made or by any
Affiliate of the Company or any such obligor shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination, except that
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee actually knows are 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 Affiliate of the
Company or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the
above-described persons; and, subject to Section 7.02, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of such determination.
Section 11.05. RIGHT OF REVOCATION OF ACTION TAKEN.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 11.01, of the taking of any action by the Holders of
the percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with
such action, any Holder of a Security the serial number of which is shown by
the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice
at the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified
in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of all the Securities
affected by such action.
Section 11.06. MEETINGS OF HOLDERS.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Section 11.06 to make, give
or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series.
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Section 11.07. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 11.06, to be
held at such time and at such place in the Borough of Manhattan, The City of
New York, or in [Boston, Massachusetts] as the Trustee shall determine or,
with the approval of the Company, at any other place. Notice of every meeting
of Holders of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 13.02 not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least
10% in principal amount of the Outstanding Securities of any series shall
have requested the Trustee to call a meeting of the Holders of Securities of
such series for any purpose specified in Section 11.06, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall
not thereafter proceed to cause the meeting to be held as provided herein,
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, the City of Boston,
Massachusetts, or in such other place as shall be determined and approved by
the Company, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this Section.
Section 11.08. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities or any series shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 11.09. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the
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meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
11.07(a), except that any such notice by publication need be given only once
not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
Any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that any resolution
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Section 11.10. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holdings of Securities shall be proved in the manner
specified in Section 11.02 and the appointment of any proxy shall be provided
in the manner specified in Section 11.02 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 11.02 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 11.02 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 11.07(b),
in which case the Company or the Holders of Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be
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elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect to
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of Securities of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 11.07 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting; and the meeting may be held as so adjourned without further
notice.
Section 11.11. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 11.07 and, if applicable, Section 11.09. Each copy shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued pursuant
to this Indenture.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is referred to in this Article Twelve as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of such series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of such
series (1) deliver Outstanding Securities of such series (other than any of
such Securities previously called for redemption or any of such Securities in
respect of which cash shall have been released to the Company), together in
the case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to
the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 12.02, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company request, and such cash payment shall be held
by the Trustee or a Paying Agent for Securities of that series and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee
or such Paying Agent shall at the request of the Company from time to time
pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities purchased by the Company having an unpaid principal amount equal
to the cash payment requested to be released to the Company.
Section 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 12.02, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking
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fund payment, and will also deliver to the Trustee any Securities to be so
credited and not theretofore delivered. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the
amount therein specified.
Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.05 and 3.06.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties which are required to be included in this Indenture by the
TIA Section 310 to 317, inclusive, such duties set forth in the TIA shall
control.
Section 13.02. NOTICES.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, any notice or communication shall be sufficiently given if in
writing and delivered in Person, sent by facsimile (with original to follow
by first-class mail) or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Sierra Pacific Resources
P.O. Box 30150 (6100 Neil Road)
Reno, Nevada 89520-3150
Attention: Director of Finance
with a copy to:
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109-2891
Attention: William C. Rogers, Esq.
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if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Sierra Pacific Resources
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of a Registered
Security shall be mailed to him by first class mail at his address as it
appears on the Security Register and shall be sufficiently given to him if so
mailed within the time prescribed. Failure to mail a notice or communication
to a Holder of any Registered Security or any defect in it shall not affect
its sufficiency with respect to other Securityholders. If a notice or
communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of
such notice.
Any notice required or permitted to be given to a Holder of Bearer
Securities of any series shall be deemed to be properly given if such notice
is published in an Authorized Newspaper on two separate days within the time
prescribed.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause, it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer Securities
as provided above, nor any defect in any notice so published, shall affect
the sufficiency of any notice mailed to Holders of Registered Securities as
provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived, in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
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Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture (except that, in the case of any request
or application as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
request or application, no additional certificate or opinion need be
furnished), the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been complied with.
Section 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition and the
definitions 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 such Person,
he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with.
Section 13.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal amount
of Securities or a series thereof have concurred in any direction, waiver or
consent, Securities owned by the Company or any other obligor upon the
Securities or by any Affiliate of the Company or such obligor shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall
not be disregarded if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to the Securities and that
the pledgee is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or such obligor.
Section 13.07. LEGAL HOLIDAYS.
A "Legal Holiday", except as otherwise provided in the form of
Security of any particular series pursuant to the provisions of this
Indenture, with respect to any Place of Payment means a Saturday, a Sunday or
a day on which banking institutions or trust companies in that Place of
Payment are not required to be open. Except as provided otherwise in the
applicable Security, if a payment date with respect to such payment is a
Legal Holiday at any Place of Payment, payment due on such Security with
respect to such Security may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue with respect to
such payment for the intervening period.
Section 13.08. GOVERNING LAW.
The laws of the State of New York applicable to contracts made and
performed in said state shall govern this Indenture and the Securities and
coupons, without regard to choice of law principles. Unless the form of
Security provides otherwise, all money or dollar amounts expressed herein or
in the Securities refer to United States dollars.
Section 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 13.10. SUCCESSORS.
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All agreements of the Company in this Indenture and the Securities
shall bind its successor and assigns, whether so expressed or not. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 13.11. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.12. SECURITIES IN FOREIGN CURRENCIES.
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or any
distribution to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action, determination or distribution
as that amount of United States dollars that could be obtained for such
amount on such reasonable basis of exchange and as of such date as the
Company may specify in a written notice to the Trustee, or in the absence of
such notice, as the Trustee may determine.
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<PAGE>
*****
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SIGNATURES
SIERRA PACIFIC RESOURCES, INC.
By: /s/ Mark A. Ruelle
---------------------------------
Name: Mark A. Ruelle
---------------------------
Title: Senior Vice President and
Chief Financial Officer
--------------------------
Dated: as of May 1, 2000
---------------
THE BANK OF NEW YORK, as Trustee
By: /s/ JoAnn Manieri
---------------------------------
Name: JoAnn Manieri
---------------------------
Title: Assistant Vice President
--------------------------
Dated: as of May 1, 2000
---------------
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EXHIBIT 4.2
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSORY DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO SIERRA
PACIFIC RESOURCES (THE "COMPANY") OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
No. R-1 $300,000,000
CUSIP No. 826 428 AC 8
SIERRA PACIFIC RESOURCES
8 3/4% NOTES DUE 2005
Sierra Pacific Resources, a corporation duly organized and existing
under the laws of the State of Nevada (hereinafter called the "Company",
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to Cede & Co., as the
nominee of The Depository Trust Company, or registered assigns, the principal
sum of Three Hundred Million Dollars ($300,000,000) on May 15, 2005 and to
pay interest thereon from the most recent interest payment date to which
interest has been paid or duly provided for, payable semiannually on May 15
and November 15 in each year (each, an "Interest Payment Date"), commencing
November 15, 2000, at the rate of 8 3/4% per annum, until the principal
hereof is paid or duly made available for payment. Interest on this Note
shall be calculated on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or maturity date falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as
if it were made on the date such payment was due and no interest shall
<PAGE>
accrue on the amount so payable for the period from and after such Interest
Payment Date or maturity date, as the case may be, to such next Business Day.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor securities) is
registered, at the close of business on the regular record date for such
interest, which shall be May 1 or November 1 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such
interest which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date shall forthwith cease to be payable to the
registered Holder hereof on the relevant regular record date by virtue of
having been such Holder, and may be paid to the Person in whose name this
Note (or one or more predecessor securities) is registered at the close of
business on a subsequent special record date (which shall be at least ten
days before the payment date) for the payment of such defaulted interest to
be fixed by the Company, notice whereof shall be given to the Holders of
Notes of this series not less than 15 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange.
Payment of the principal of and the interest on this Note will be
made at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, 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, however, that, at the option
of the Company, interest may be paid by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register; provided, further, that payment to DTC or any successor depository
may be made by wire transfer to the account designated by DTC or such
successor depository in writing.
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes") and to be issued in one or more series
under an Indenture, dated as of May 1, 2000 (herein called, together with all
indentures supplemental thereto, the "Indenture"), between the Company and
The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes, and the
term upon which the Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof, initially
limited (subject to exceptions provided in the Indenture) to the aggregate
principal amount specified in the Officers' Certificate dated May 9, 2000
(the "Officers' Certificate"), establishing the terms of the Notes pursuant
to the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting, 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 of each series issued under the Indenture at any time by the
Company and the Trustee with the written consent of the Holders of not less
than a majority
2
<PAGE>
in aggregate principal amount of the Securities at the time Outstanding of
each series affected thereby. The Indenture further provides that without the
consent of any Holder the Company and the Trustee may amend or supplement the
Indenture or Notes to, among other things, cure any ambiguity, defect or
inconsistency, provided that no such action shall adversely affect the
interest of the Holders. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the
Securities of any series at the time outstanding, on behalf of the Holders of
all Securities of such series, or the Holders of at least a majority in
principal amount of all the Outstanding Securities voting as one class, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration or transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
This Note is not subject to any sinking fund and, except as provided
below, is not redeemable or prepayable prior to its maturity date. At the
Company's option, the Notes may be redeemed, in whole or in part, at any time
or from time to time, at a redemption price calculated as set forth below
together with accrued interest thereon at the applicable rate payable to the
date of redemption, upon written notice given not more than 60 days nor less
than 30 days prior to such redemption date. The redemption price shall be the
greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes to be redeemed
discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Rate, plus 25 basis points.
For purposes of calculating the above redemption price, the
following definitions shall apply:
(a) "Business Day" means any day that is not a
Saturday, a Sunday or a day on which banking
institutions or trust companies in New York City are
authorized or obligated by law to close;
(b) "Comparable Treasury Issue" means the U.S.
Treasury security selected by an Independent
Investment Banker as having a maturity comparable to
the remaining term of the notes to be redeemed that
would be utilized, at the time of selection and in
accordance with customary financial practice, in
pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such
notes;
(c) "Comparable Treasury Price" means, with respect
to any redemption date, (1) the average of the
Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (2)
if the Trustee obtains
3
<PAGE>
fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations;
(d) "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee
after consultation with the Company;
(e) "Reference Treasury Dealer" means each of Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Credit
Suisse First Boston Corporation, Salomon Smith Barney
Inc., and at least two other entities chosen by the
Company, or their affiliates which are primary U.S.
government securities dealers, and their respective
successors; provided, however, that if that company
ceases to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute another Primary
Treasury Dealer;
(f) "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) quoted in
writing to the Independent Investment Banker at 3:30
p.m., New York City time, on the third Business Day
preceding such redemption date;
(g) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed a s a percentage
of its principal amount) equal to the Comparable
Treasury Price for such redemption date;
On and after the redemption date, interest will no longer accrue on
the Notes or any portion of the Notes called for redemption unless the
Company defaults in the payment of the redemption price and accrued interest.
If less than all of the Notes are to be redeemed, the Notes to be redeemed
shall be selected by the Trustee by such method as the Trustee shall deem
fair and appropriate.
No reference herein to the Indenture and no provisions of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note, at the times, place and rate, and in the coin or currency, herein
and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and in this Note, the transfer of this Note may be registered
on the Security Register upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for the purpose in
any place where the principal of and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or by his attorney duly authorized in
4
<PAGE>
writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
the denominations specified in the Officers' Certificate establishing the
terms of the Notes, all as more fully provided in the Indenture and such
Officers' Certificate. As provided in the Indenture and in such Officers'
Certificate, and subject to certain limitations set forth in the Indenture,
such Officers' Certificate and in this Note, the Notes are exchangeable for a
like aggregate principal amount of Notes of this series in authorized
denominations, as requested by the Holders 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, other than in certain cases provided in the Indenture.
Prior to due presentment of this Note 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 Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of, or the
interest on, this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitutional provision or statute or rule of law,
or by the enforcement of any assessment or penalty or in any other manner,
all such liability being expressly waived and released by the acceptance
hereof and as part of the consideration for the issue hereof.
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Notes (subject to certain
exceptions) or (ii) the Company may be released from its obligation under
specified covenants and agreements in the Indenture, in each case if the
Company irrevocably deposits with the Trustee money or U.S. Government
Obligations, or a combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on all Notes of this series, and satisfies
certain other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, applicable to agreements and instruments made
and to be performed wholly within such State.
All terms used in this Note without definition that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
5
<PAGE>
Unless the Certificate of Authentication hereon has been executed by
or on behalf of the Trustee under the Indenture by the manual signature of
one of its authorized officers, this Note shall not be entitled to any
benefits 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.
SIERRA PACIFIC RESOURCES
By: /s/ Mark A. Ruelle
--------------------------------
Name: Mark A. Ruelle
Title: Senior Vice President, Chief
Financial Officer, and
Treasurer
Dated: May 9, 2000
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: /s/ JoAnn Manieri
--------------------------------
Authorized Officer
<PAGE>
EXHIBIT 4.3
SIERRA PACIFIC RESOURCES
OFFICERS' CERTIFICATE
Pursuant to Sections 2.01, 13.04 and 13.05 of the Indenture, dated as
of May 1, 2000 (as supplemented and amended from time to time, the "Indenture"),
between Sierra Pacific Resources (the "Company") and The Bank of New York, as
trustee, the undersigned officers of the Company, William E. Peterson, Senior
Vice President, General Counsel and Corporate Secretary, and Mark A. Ruelle,
Senior Vice President and Chief Financial Officer, of the Company, do hereby
certify that:
(1) there is hereby established a series of Securities
under and pursuant to the terms of the Indenture to be
designated as the Company's "8 3/4 Notes due 2005" (the
"Notes"), which shall initially be limited to an aggregate
principal amount of $300,000,000;
(2) the Notes will bear interest at an annual rate of 8 3/4%
from May 9, 2000, payable semi-annually on May 15 and
November 15 of each year beginning November 15, 2000 to the
persons in whose name they are registered at the close of
business on May 1 or November 1 preceding the interest
payment date. Interest on the Notes will be calculated on
the basis of a 360-day year of twelve 30-day months;
(3) the Notes will mature on May 15, 2005 and may be
redeemed before their maturity as described in (4), but are
not entitled to the benefit of any sinking fund;
(4) the Notes may be redeemed, in whole or in part, at the
Company's option, at any time or from time to time, at a
redemption price set forth below together with accrued
interest thereon at the applicable rate payable to the date
of redemption, on written notice given not more than 60
days nor less than 30 days prior to such redemption date.
The redemption price shall be the greater of:
(a) 100% of the principal amount of the Notes to be
redeemed, and
(b) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes
to be redeemed discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Rate, plus
25 basis points.
The following are defined terms relating to the Notes:
(a) "Business Day" means any day that is not a Saturday, a
Sunday or a day on which banking institutions or trust
companies in New York City are authorized or obligated by
law to close;
<PAGE>
(b) "Comparable Treasury Issue" means the U.S. Treasury
security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the
notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of
such notes;
(c) "Comparable Treasury Price" means, with respect to any
redemption date, (1) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer
Quotations, or (2) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of
all such quotations;
(d) "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after
consultation with the Company;
(e) "Reference Treasury Dealer" means each of Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse
First Boston Corporation, Salomon Smith Barney Inc., and at
least two other entities chosen by the Company, or their
affiliates which are primary U.S. government securities
dealers, and their respective successors; provided,
however, that if that company ceases to be a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company will substitute another
Primary Treasury Dealer;
(f) "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee,
of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent
Investment Banker at 3:30 p.m., New York City time, on the
third Business Day preceding such redemption date;
(g) "Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption date;
In the event of redemption of the Notes in part only, new Notes for
the unredeemed portion thereof shall be issued in the name of the Holder
thereof upon the surrender thereof.
2
<PAGE>
(5) the Notes initially will be issued in book-entry form
only. The Notes will be represented by one or more global
securities deposited with The Depository Trust Company
("DTC") and registered in the name of DTC's nominee. The
Company will not issue the Notes in definitive form unless
DTC at any time is unwilling or unable to continue as a
depository and the Company does not appoint a successor
depository within 90 days. Under such circumstances, the
Company will issue Notes in definitive form in exchange for
the entire global security. In addition, the Company may at
any time determine not to have Notes represented by a
global security and, in such event, the Company will issue
Notes in definitive form in exchange for the entire global
security. Notes so issued in definitive form will be issued
as registered Notes in denominations of $1,000 and integral
multiples thereof, unless the Company specifies otherwise;
(6) the Notes shall be substantially in the form of the
specimen Note attached hereto as EXHIBIT A; and
(7) the Company covenants and agrees, for the benefit of
the holders of the Notes, that if at any time between the
date hereof and May 5, 2001, the Company issues any debt
securities which have the benefit of any covenant that is
more favorable to the holders of such securities than the
covenants applicable to the Notes, then the Company shall
amend the Indenture to make a similar covenant for the
benefit of the holders of the Notes.
The undersigned officers of the Company do hereby further certify,
pursuant to Sections 13.04 and 13.05 of the Indenture, as follows:
(1) We have read the covenants and conditions of the
Indenture, in respect of which this certificate is
furnished; and
(2) We have made such examination or investigation, either
personally or through appropriate officers or employees of
the Company, as is necessary to enable us to express an
informed opinion that such covenants and conditions have
been complied with.
(3) In our opinion, such covenants and conditions have been
complied with.
Capitalized terms not otherwise defined herein have the meanings set
forth in the Indenture.
3
<PAGE>
IN WITNESS WHEREOF, we have hereunto set our hands this 9th day of
May, 2000.
/s/ William E. Peterson
--------------------------------------
William E. Peterson
Senior Vice President, General Counsel
and Corporate Secretary
/s/ Mark A. Ruelle
--------------------------------------
Mark A. Ruelle
Senior Vice President, Chief
Financial Officer and Treasurer
