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Exhibit 4.1
EXECUTION COPY
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| IPALCO ENTERPRISES, INC. |
| as Issuer |
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| and |
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| The Bank of New York Trust Company, N.A., |
| as Trustee |
| |
|
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| Indenture |
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| Dated as April 15, 2008 |
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| 7.25% Senior Secured Notes Due 2016 |
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TABLE
OF CONTENTS
PAGE
RECITALS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions.........................................................................................................................................................................................1
Section 1.02. Rules of
Construction....................................................................................................................................................................12
ARTICLE 2
THE NOTES
Section 2.01. Form, Dating and Denominations;
Legends...............................................................................................................................13
Section 2.02. Execution and Authentication; Additional
Notes....................................................................................................................14
Section 2.03. Registrar, Paying Agent and Authenticating
Agent; Paying
Agent to Hold Money in
Trust....................................................................................................................................................15
Section 2.04. Replacement
Notes.........................................................................................................................................................................16
Section 2.05. Outstanding
Notes.........................................................................................................................................................................16
Section 2.06. Temporary
Notes............................................................................................................................................................................17
Section 2.07.
Cancellation.....................................................................................................................................................................................17
Section 2.08. CUSIP and CINS
Numbers............................................................................................................................................................17
Section 2.09. Registration, Transfer and
Exchange...........................................................................................................................................17
Section 2.10. Restrictions on Transfer and
Exchange.......................................................................................................................................20
Section 2.11. Temporary Offshore Global
Notes................................................................................................................................................22
ARTICLE 3
OPTIONAL REDEMPTION
Section 3.01. Optional
Redemption......................................................................................................................................................................22
Section 3.02. Method and Effect of
Redemption................................................................................................................................................23
Section 3.03. Sinking
Fund....................................................................................................................................................................................24
ARTICLE 4
COVENANTS
Section 4.01. Payment of
Notes............................................................................................................................................................................24
Section 4.02. Maintenance of Office or
Agency................................................................................................................................................25
Section 4.03. Limitations on
Liens........................................................................................................................................................................26
Section 4.04. Noteholders’
Lists...........................................................................................................................................................................29
Section 4.05. Certificate to
Trustee.......................................................................................................................................................................29
Section 4.06. Reports by the
Company................................................................................................................................................................30
Section 4.07. Repurchase of Notes Upon a Change of
Control........................................................................................................................30
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. Limitations on Merger, Consolidation, Sale,
Lease
or
Conveyance........................................................................................................................................................................................31
Section 5.02. Successor
Substituted.......................................................................................................................................................................33
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of
Default.................................................................................................................................................................................33
Section 6.02.
Acceleration.........................................................................................................................................................................................34
Section 6.03. Other
Remedies....................................................................................................................................................................................35
Section 6.04. Waiver of Past
Defaults......................................................................................................................................................................35
Section 6.05. Control by
Majority.............................................................................................................................................................................35
Section 6.06. Limitation on
Suits................................................................................................................................................................................36
Section 6.07. Rights of Holders to Receive
Payment..............................................................................................................................................36
Section 6.08. Collection Suit by
Trustee...................................................................................................................................................................36
Section 6.09. Trustee May File Proofs of
Claim.......................................................................................................................................................36
Section 6.10.
Priorities..................................................................................................................................................................................................37
Section 6.11. Restoration of Rights and
Remedies..................................................................................................................................................37
Section 6.12. Undertaking for
Costs...........................................................................................................................................................................38
Section 6.13. Rights and Remedies
Cumulative........................................................................................................................................................38
Section 6.14. Delay or Omission Not
Waiver............................................................................................................................................................38
Section 6.15. Waiver of Stay, Extension or Usury
Laws..........................................................................................................................................38
ARTICLE 7
THE TRUSTEE
Section 7.01.
General....................................................................................................................................................................................................39
Section 7.02. Certain Rights of
Trustee.....................................................................................................................................................................39
Section 7.03. Individual Rights of
Trustee.................................................................................................................................................................41
Section 7.04. Trustee’s
Disclaimer..............................................................................................................................................................................41
Section 7.05. Notice of
Default....................................................................................................................................................................................41
Section 7.06. Reports by Trustee to
Holders.............................................................................................................................................................41
Section 7.07. Compensation and
Indemnity..............................................................................................................................................................42
Section 7.08. Replacement of
Trustee........................................................................................................................................................................42
Section 7.09. Successor Trustee by
Merger..............................................................................................................................................................43
Section 7.10.
Eligibility..................................................................................................................................................................................................43
Section 7.11. Money Held in
Trust..............................................................................................................................................................................44
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01. Satisfaction and Discharge of
Indenture.............................................................................................................................................44
Section 8.02. Defeasance and Discharge of
Indenture..............................................................................................................................................45
Section 8.03. Defeasance of Certain
Obligations........................................................................................................................................................47
Section 8.04. Application of Trust
Money..................................................................................................................................................................48
Section 8.05. Repayment to
Company.........................................................................................................................................................................48
Section 8.06.
Reinstatement...........................................................................................................................................................................................49
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments Without Consent of
Holders.........................................................................................................................................49
Section 9.02. Amendments With Consent of
Holders...............................................................................................................................................50
Section 9.03. Effect of
Consent......................................................................................................................................................................................51
Section 9.04. Trustee’s Rights and
Obligations...........................................................................................................................................................51
Section 9.05. Conformity with Trust Indenture
Act....................................................................................................................................................52
Section 9.06. Payments for
Consents............................................................................................................................................................................52
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act of
1939...................................................................................................................................................................52
Section 10.02. Noteholder Communications; Noteholder
Actions.............................................................................................................................52
Section 10.03.
Notices.......................................................................................................................................................................................................53
Section 10.04. Certificate and Opinion as to Conditions
Precedent...........................................................................................................................54
Section 10.05. Statements Required in Certificate or
Opinion......................................................................................................................................54
Section 10.06. Payment Date Other Than a Business
Day...........................................................................................................................................55
Section 10.07. Governing
Law...........................................................................................................................................................................................55
Section 10.08. No Adverse Interpretation of Other
Agreements.................................................................................................................................55
Section 10.09.
Successors.................................................................................................................................................................................................55
Section 10.10. Duplicate
Originals....................................................................................................................................................................................55
Section 10.11.
Separability.................................................................................................................................................................................................55
Section 10.12. Table of Contents and
Headings............................................................................................................................................................55
Section 10.13. No Liability of Directors, Officers,
Employees,
Incorporators
and
Stockholders.......................................................................................................................................................................................55
Section 10.14. Waiver of Jury
Trial..................................................................................................................................................................................55
Section 10.15. Force
Majeure...........................................................................................................................................................................................56
ARTICLE 11
SECURITY AND COLLATERAL
Section 11.01. Pledge
Agreement....................................................................................................................................................................................56
Section 11.02. Recording and
Opinions..........................................................................................................................................................................57
Section 11.03. Release of
Collateral................................................................................................................................................................................57
Section 11.04. Certificates of the
Company..................................................................................................................................................................58
Section 11.05. Certificates of the
Trustee......................................................................................................................................................................58
Section 11.06. Authorization of Actions To Be Taken by the
Collateral
Agent Under the Pledge
Agreement....................................................................................................................................................58
Section 11.07. Authorization of Receipt of Refunds by the
Trustee Under
the
Pledge
Agreement....................................................................................................................................................................................58
Section 11.08. Termination of Security
Interest............................................................................................................................................................58
EXHIBITS
EXHIBIT A Form of
Note
EXHIBIT B
Restricted
Legend
EXHIBIT C DTC
Legend
EXHIBIT D
Regulation S
Certificate
EXHIBIT E
Rule 144A
Certificate
EXHIBIT F
Certificate of Beneficial
Ownership
EXHIBIT G
Temporary Offshore Global Note Legend
INDENTURE, dated as of April 15, 2008, between IPALCO
Enterprises, Inc., an Indiana corporation, as the Company, and The
Bank of New York Trust Company, N.A., a national banking
association, as Trustee.
RECITALS
The Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance of senior secured notes,
designated as the “7.25% Senior Secured Notes due 2016”
in an aggregate principal amount of $400,000,000 (collectively
with, if and when issued, any Additional Notes, the
“Notes”). All things necessary to make the
Indenture a valid agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things
necessary to make the Notes (in the case of the Additional Notes,
when duly authorized), when executed by the Company and
authenticated and delivered by the Trustee and duly issued by the
Company, the valid obligations of the Company as hereinafter
provided.
This Indenture is subject to, and will be governed by, the
provisions of the Trust Indenture Act that are required to be a
part of and govern indentures qualified under the Trust Indenture
Act.
THIS INDENTURE
WITNESSETH
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, the parties hereto covenant and
agree, for the equal and proportionate benefit of all Holders, as
follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Unless otherwise
noted, the definitions herein apply to both the singular and plural
meanings of each term.
“Additional Notes” means any Notes
issued under the Indenture in addition to the Initial Notes having
the same terms in all respects as the Initial Notes.
“AES” means The AES Corporation, a
Delaware corporation, and its successors and assigns.
“Affiliate” means, with respect to
any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with,
such Person. For purposes of this definition,
“control” (including, with correlative
meanings, the terms “controlling,”
“controlled by” and “under
common control with” ) with respect to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Agent” means any Registrar, Paying
Agent or Authenticating Agent.
“Agent Member” means a member of,
or a participant in, the Depositary.
“Authenticating Agent” refers to a
Person engaged to authenticate the Notes in the stead of the
Trustee.
“Bankruptcy Default” has the
meaning assigned to such term in Section 6.01.
“Board of Directors” of a Person
means the board of directors or comparable governing body of such
Person.
“Business Day” means any day except
a Saturday, Sunday or other day on which commercial banks in New
York City or in the city where the Corporate Trust Office of the
Trustee is located are authorized by law to close.
“Capitalized Lease Obligations”
means all lease obligations of the Company and its Subsidiaries
which, under GAAP, are or will be required to be capitalized, in
each case taken at the amount of the lease obligation accounted for
as indebtedness in conformity with those principles.
“Certificate of Beneficial
Ownership” means a certificate substantially in the
form of Exhibit F.
“Certificated Note” means a Note in
registered individual form without interest coupons.
“Change of Control” means the
occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or
assets of the Company and its subsidiaries taken as a whole to any
person (as such term is used in Section 13(d) of the Exchange Act)
other than the Company or one of its subsidiaries; (2) the
consummation of any transaction (including, without limitation, any
merger or consolidation), other than any transaction the result of
which is a Parent Company Change of Control, the result of which is
that any person (as such term is used in Section 13(d) of the
Exchange Act) other than a Permitted Holder becomes the beneficial
owner, directly or indirectly, of more than 50% of the then
outstanding number of shares of the Company’s Voting Stock
than is held by the Permitted Holders on such date; or (3) the
first day on which a majority of the members of the Company’s
Board of Directors are not Continuing Directors of the Company.
“Change of Control Offer” has the
meaning assigned to such term in Section 4.07.
“Change of Control Triggering
Event” means the occurrence of either (a) a Change
of Control, or (b) a Parent Company Change of Control.
“Clearstream” means Clearstream
Banking SA and its successors.
“Collateral” has the meaning
specified in the Pledge Agreement.
“Collateral Agent” has the meaning
specified in the Pledge Agreement.
“Commission” means the Securities
and Exchange Commission.
“Company” means the party named as
such in the first paragraph of the Indenture or any successor
obligor under the Indenture and the Notes pursuant to Section
5.01.
“Comparable Treasury Issue” means,
with respect to any Notes to be redeemed, the United States
Treasury security selected by an independent investment banking
institution of international standing appointed by the Company as
having a maturity comparable to the remaining term of such Notes
that would be used, 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.
“Comparable Treasury Price” means,
with respect to any Comparable Treasury Issue:
(1) the average of
the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, on
the third Business Day preceding the redemption date of the Notes
to be redeemed, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated “Composite 3:30 p.m. Quotations for U.S.
Government Securities”; or
(2) if such release
(or any successor release) is not published or does not contain
such prices on such Business Day, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury
Issue, expressed in each case as a percentage of its principal
amount and quoted in writing to the Company by a primary U.S.
government securities dealer in New York City appointed by the
Company at 5:00 p.m. on the third Business Day preceding such
redemption date.
“Continuing Directors” means, as of
any date of determination, any member of the Board of Directors who
(1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected
to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at
the time of such nomination or election (either by vote of the
Board of Directors or by approval of the stockholders after receipt
of a proxy statement in which such member was named as a nominee
for election as a director, without objection to such
nomination).
“Corporate Trust Office” means the
principal office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the dated
hereof is located at 2 N. LaSalle Street, Suite 1020 Chicago, IL
60602, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate
trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to
the Holders and the Company).
“Currency, Interest Rate or Commodity
Agreements” means an agreement or transaction
involving any currency, interest rate or Energy price or volumetric
swap, cap or collar arrangement, forward exchange transaction,
option, warrant, forward rate agreement, futures contract or other
derivative instrument of any kind for the hedging or management of
foreign exchange, interest rate or Energy price or volumetric
risks, it being understood, for purposes of this definition, that
the term “Energy” will include,
without limitation, coal, gas, oil and electricity.
“Default” means any event that is,
or after notice or passage of time or both would be, an Event of
Default.
“Depositary” means the depositary
of each Global Note, which will initially be DTC.
“DTC” means The Depository Trust
Company, a New York corporation, and its successors.
“DTC Legend” means the legend set
forth in Exhibit C.
“Euroclear” means Euroclear Bank
S.A./N.V., and its successors or assigns, as operator of the
Euroclear System.
“Event of Default” has the meaning
assigned to such term in Section 6.01.
“Exchange Act” means the Securities
Exchange Act of 1934.
“Excluded Subsidiary” means any
Subsidiary of the Company:
(1) in respect of
which neither the Company nor any Subsidiary of the Company (other
than another Excluded Subsidiary) has undertaken any legal
obligation to give any guarantee for the benefit of the holders of
any Indebtedness for Borrowed Money (other than to another member
of the Group) other than in respect of any statutory obligation and
the Subsidiaries of which are all Excluded Subsidiaries; and
(2) which has been
designated as such by the Company by written notice to the Trustee;
provided that the Company may give written notice to the Trustee at
any time that any Excluded Subsidiary is no longer an Excluded
Subsidiary whereupon it shall cease to be an Excluded
Subsidiary.
“GAAP” means generally accepted
accounting principles in the United States of America as in effect
from time to time.
“Global Note” means a Note in
registered global form without interest coupons.
“Group” means the Company and its
Subsidiaries and “member of the Group” shall be
construed accordingly.
“Holder” or
“Noteholder” means the registered
holder of any Note.
“Incur” means, with respect to any
Indebtedness, to Incur, create, issue, assume or guarantee or
otherwise become liable for such Indebtedness; provided that
neither the accrual of interest (whether such interest is payable
in cash or in kind) nor the accretion of original issue discount
shall be considered an “Incurrence” of
Indebtedness.
“Indebtedness” means, with respect
to the Company or any of its Subsidiaries at any date of
determination (without duplication):
(1) all Indebtedness
for Borrowed Money (excluding any credit which is available but
undrawn);
(2) all obligations
in respect of letters of credit (including reimbursement
obligations with respect to letters of credit);
(3) all obligations
to pay the deferred and unpaid purchase price of property or
services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and
title to the property or the completion of such services, except
trade payables;
(4) all Capitalized
Lease Obligations;
(5) all indebtedness
of other persons secured by a mortgage, charge, lien, pledge or
other security interest on any asset of the Company or any of its
Subsidiaries, whether or not such indebtedness is assumed; provided
that the amount of such Indebtedness must be the lesser of:
(a) the fair market value of such asset at such date of
determination and (b) the amount of the secured
indebtedness;
(6) all indebtedness
of other persons of the types specified in the preceding clauses
(1) through (5), to the extent such indebtedness is guaranteed by
the Company or any of its Subsidiaries; and
(7) to the extent not
otherwise included in this definition, net obligations under
Currency, Interest Rate or Commodity Agreements.
The amount of Indebtedness at any date
will be the outstanding balance at such date of all unconditional
obligations as described above and, upon the occurrence of the
contingency giving rise to the obligation, the maximum liability of
any contingent obligations of the types specified in the preceding
clauses (1) through (7) at such date; provided that the amount
outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of
such Indebtedness at such time as determined in conformity with
GAAP.
“Indebtedness For Borrowed Money”
means any indebtedness (whether being principal, premium, interest
or other amounts) for:
(1) money
borrowed;
(2) payment
obligations under or in respect of any trade acceptance or trade
acceptance credit; or
(3) any notes, bonds,
loan stock or other debt securities offered, issued or distributed
whether by way of public offer, private placement, acquisition
consideration or otherwise and whether issued for cash or in whole
or in part for a consideration other than cash;
provided, however, in each case, that
such term will exclude:
(a) any indebtedness
relating to any accounts receivable securitizations;
(b) any Indebtedness
of the type permitted to be secured by Liens pursuant to Section
4.03(b)(xii) hereof; and
(c) any Preferred
Securities which are issued and outstanding on the date of original
issue of the Notes or any extension, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or in
part, of any such existing Preferred Securities, for amounts not
exceeding the principal amount or liquidation preference of the
Preferred Securities so extended, renewed or replaced.
“Indenture” means this indenture,
as amended or supplemented from time to time.
“Initial Notes” means the Notes
issued on the Issue Date and any Notes issued in replacement
thereof.
“Initial Purchasers” means the
initial purchasers party to a purchase agreement with the Company
relating to the sale of the Initial Notes or Additional Notes by
the Company.
“Interest Payment Date” has the
meaning ascribed to such term in the Notes.
“Investments” in any Person means
any loan or advance to, any net payment on a guarantee of, any
acquisition of capital stock, equity interest, obligation or other
security of, or capital contribution or other investment in, such
Person. Investments exclude advances to customers and
suppliers in the ordinary course of business.
“IPALCO Indebtedness” means any
Indebtedness of the Company; provided that the aggregate
outstanding principal amount of such Indebtedness that is secured
by a Lien upon any common stock of IPL may not exceed $1 billion
and that the proceeds of such secured Indebtedness (other than of
any such secured Indebtedness existing prior to the date hereof)
may not be used to pay any dividend to the Parent Company and,
provided further, that the aggregate outstanding principal amount
of such Indebtedness shall be calculated exclusive of secured
Indebtedness that is being concurrently redeemed, repaid, defeased
or otherwise retired with the proceeds of an offering of secured
Indebtedness.
“IPL” means Indianapolis Power
& Light Company, an Indiana corporation and a Subsidiary of the
Company.
“Issue Date” means the date on
which the Initial Notes are originally issued under the
Indenture.
“Lien” means any mortgage, lien,
pledge, security interest or other encumbrance; provided, however,
that the term “Lien” does not mean any easements,
rights-of-way, restrictions and other similar encumbrances and
encumbrances consisting of zoning restrictions, leases, subleases,
restrictions on the use of property or defects in title.
“Non-U.S. Person” means a Person
that is not a U.S. person, as defined in Regulation S.
“Notes” has the meaning assigned to
such term in the Recitals.
“Obligations” has the meaning
specified in Section 11.01.
“Officer” means the chairman of the
Board of Directors, the president or chief executive officer, any
vice president, the chief financial officer, the treasurer or any
assistant treasurer, or the secretary or any assistant secretary,
of the Company.
“Officers’ Certificate” means
a certificate signed in the name of the Company (i) by the chairman
of the Board of Directors, the president or chief executive officer
or a vice president and (ii) by the chief financial officer, the
treasurer or any assistant treasurer or the secretary or any
assistant secretary.
“Offshore Global Note” means a
Global Note representing Notes issued and sold pursuant to
Regulation S.
“Opinion of Counsel” means a
written opinion signed by legal counsel, who may be an employee of
or counsel to the Company.
“Parent Company” means The AES
Corporation.
“Parent Company Change of Control”
means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all of the properties
or assets of the Parent Company and its subsidiaries taken as a
whole to any person (as such term is used in Section 13(d) of the
Exchange Act) other than the Parent Company or one of its
subsidiaries; (2) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of
which is that any person (as such term is used in Section 13(d) of
the Exchange Act) becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of
shares of the Parent Company’s Voting Stock; or (3) the first
day on which a majority of the members of the Parent
Company’s Board of Directors are not Continuing Directors of
the Parent Company.
“Paying Agent” refers to a Person
engaged to perform the obligations of the Trustee in respect of
payments made or funds held hereunder in respect of the Notes.
“Permanent Offshore Global Note”
means an Offshore Global Note that does not bear the Temporary
Offshore Global Note Legend.
“Permitted Holder” means, at any
time, The AES Corporation and its affiliates. In addition,
any person or group whose acquisition of beneficial ownership
constitutes a Change of Control in respect of which a Change of
Control Offer is made in accordance with the requirements of the
Indenture will thereafter, together with its affiliates, constitute
an additional Permitted Holder.
“Person” means an individual, a
corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or
political subdivision or an agency or instrumentality thereof.
“Pledge Agreement” means the Pledge
Agreement dated as of November 14, 2001, as supplemented by the
Pledge Agreement Supplement, made by the Company in favor of The
Bank of New York Trust Company, N.A., as Collateral Agent.
“Pledge Agreement Supplement” means
the supplement, dated the date hereof, to the Pledge Agreement.
“Pledged Stock” means all of the
outstanding common stock of IPL and any proceeds therefrom pledged
by the Company to the Collateral Agent for the benefit of the
Holders of the Notes.
“Preferred Securities” means,
without duplication, any trust preferred or preferred securities or
related debt or guaranties of the Company or any of its
Subsidiaries.
“Project Finance Debt” means:
(1) any Indebtedness
to finance or refinance the ownership, acquisition, development,
design, engineering, procurement, construction, servicing,
management and/or operation of any project or asset which is
Incurred by an Excluded Subsidiary; and
(2) any Indebtedness
to finance or refinance the ownership, acquisition, development,
design, engineering, procurement, construction, servicing,
management and/or operation of any project or asset in respect of
which the person or persons to whom any such Indebtedness is or may
be owed by the relevant borrower (whether or not a member of the
Group) has or have no recourse whatsoever to any member of the
Group (other than an Excluded Subsidiary) for the repayment of that
Indebtedness other than: (a) recourse to such member of the Group
for amounts limited to the cash flow or net cash flow (other than
historic cash flow or historic net cash flow) from, or ownership
interests or other investments in, such project or asset; and/or
(b) recourse to such member of the Group for the purpose only of
enabling amounts to be claimed in respect of such Indebtedness in
an enforcement of any encumbrance given by such member of the Group
over such project or asset or the income, cash flow or other
proceeds deriving from the project (or given by any shareholder or
the like, or other investor in, the borrower or in the owner of
such project or asset over its shares or the like in the capital
of, or other investment in, the borrower or in the owner of such
project or asset) to secure such Indebtedness, provided that the
extent of such recourse to such member of the Group is limited
solely to the amount of any recoveries made on any such
enforcement; and/or (c) recourse to such borrower generally, or
directly or indirectly to a member of the Group, under any form of
assurance, indemnity, undertaking or support, which recourse is
limited to a claim for damages (other than liquidated damages and
damages required to be calculated in a specified way) for breach of
an obligation (not being a payment obligation or an obligation to
procure payment by another or an indemnity in respect of a payment
obligation, or any obligation to comply or to procure compliance by
another with any financial ratios or other tests of financial
condition) by the person against which such recourse is
available.
“Redemption Price” has the meaning
assigned to such term in Section 3.01.
“Register” has the meaning assigned
to such term in Section 2.09.
“Registrar” means a Person engaged
to maintain the Register.
“Regular Record Date” for the
interest payable on any Interest Payment Date means the close of
business on March 15 or September 15 (whether or not a Business
Day) immediately preceding such Interest Payment Date.
“Regulation S” means Regulation S
under the Securities Act.
“Regulation S Certificate” means a
certificate substantially in the form of Exhibit D hereto.
“Responsible Officer” , when used
with respect to the Trustee, means any officer within the Corporate
Trust Office, including any vice president, assistant vice
president, assistant secretary (if any), treasurer, assistant
treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers; and also means, with respect to a particular
corporate trust mater, any other officer to whom such matter is
referred because of such officer’s knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Restricted Legend” means the
legend set forth in Exhibit B.
“Restricted Period” means the
relevant 40-day distribution compliance period as defined in
Regulation S.
“Rule 144A” means Rule 144A under
the Securities Act.
“Rule 144A Certificate” means (i) a
certificate substantially in the form of Exhibit E hereto or (ii) a
written certification addressed to the Company and the Trustee to
the effect that the Person making such certification (x) is
acquiring such Note (or beneficial interest) for its own account or
one or more accounts with respect to which it exercises sole
investment discretion and that it and each such account is a
qualified institutional buyer within the meaning of Rule 144A, (y)
is aware that the transfer to it or exchange, as applicable, is
being made in reliance upon the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z)
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A(d)(4) or has
determined not to request such information.
“Securities Act” means the
Securities Act of 1933.
“Significant Subsidiary” means, at
any particular time, any Subsidiary of the Company whose gross
assets or gross revenues (having regard to the Company’s
direct and/or indirect beneficial interest in the shares, or the
like, of that Subsidiary) represent at least 25% of the
consolidated gross assets or, as the case may be, consolidated
gross revenues of the Company.
“Subsidiary” means, with respect to
any person, any corporation, association, partnership, limited
liability company or other business entity of which 50% or more of
the total voting power of shares of capital stock or other
interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees is at the time owned,
directly or indirectly, by (1) such person, (2) such person and one
or more Subsidiaries of such person or (3) one or more Subsidiaries
of such person.
“Surviving Person” has the meaning
ascribed to such term in Section 5.01 hereof.
“Temporary Offshore Global Note”
means an Offshore Global Note that bears the Temporary Offshore
Global Note Legend.
“Temporary Offshore Global Note
Legend” means the legend set forth in Exhibit G.
“Treasury Yield” means, with
respect to any Notes to be redeemed, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable
Treasury Issue for the Notes, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to its Comparable Treasury Price.
“Trustee” means the party named as
such in the first paragraph of the Indenture or any successor
trustee under the Indenture pursuant to Article 7.
“Trust Indenture Act” or
“TIA” means the Trust Indenture Act of
1939, as amended.
“U.S. Global Note” means a Global
Note that bears the Restricted Legend representing Notes issued and
sold pursuant to Rule 144A.
“U.S. Government Obligation” means
any:
(1) security which
is: (a) a direct obligation of the United States for the payment of
which the full faith and credit of the United States is pledged or
(b) an obligation of a person controlled or supervised by and
acting as an agency or instrumentality of the United States the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States, which, in the case of
clause (a) or (b), is not callable or redeemable at the option of
the issuer of the obligation, and
(2) depositary
receipt issued by a bank (as defined in the Securities Act) as
custodian with respect to any security specified in clause (1)
above and held by such bank for the account of the holder of such
depositary receipt or with respect to any specific payment of
principal of or interest on any such security held by any such
bank, 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 U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government
Obligation evidenced by such depositary receipt.
“Voting Stock” of any specified
person means the capital stock of such person that is at the time
entitled to vote generally in the election of the Board of
Directors of such Person.
Section 1.02. Rules of Construction.
Unless the context otherwise requires or except as otherwise
expressly provided,
(a)
an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b)
“herein,” “hereof” and
other words of similar import refer to the Indenture as a whole and
not to any particular Section, Article or other
subdivision;
(c)
all references to Sections or Articles or Exhibits refer to
Sections or Articles or Exhibits of or to the Indenture unless
otherwise indicated;
(d)
references to agreements or instruments, or to statutes or
regulations, are to such agreements or instruments, or statutes or
regulations, as amended from time to time (or to successor statutes
and regulations);
(e)
in the event that a transaction meets the criteria of more than one
category of permitted transactions or listed exceptions the Company
may classify such transaction as it, in its sole discretion,
determines; and
(f)
all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meaning assigned to them therein to the extent applicable.
Article 2
The Notes
Section 2.01. Form, Dating and Denominations;
Legends. (a) The Notes and the Trustee’s
certificate of authentication related thereto will be substantially
in the form attached as Exhibit A. The terms and provisions
contained in the form of Note annexed as Exhibit A constitute, and
are hereby expressly made, a part of the Indenture. The Notes may
have notations, legends or endorsements required by law, rules of
or agreements with national securities exchanges to which the
Company is subject. Each Note will be dated the date of its
authentication. The Notes will be issuable in denominations
of $1,000 in principal amount and any multiple of $1,000 in excess
thereof.
(b) (i) Except
as otherwise provided in paragraph (c), Section 2.10(b)(iii) or
(c), or Section 2.09(b)(iv), each Initial Note or Additional Note
(other than a Permanent Offshore Note) will bear the Restricted
Legend.
(ii) Each Global Note,
whether or not an Initial Note or Additional Note, will bear the
DTC Legend.
(iii) Each Temporary Offshore
Global Note will bear the Temporary Offshore Global Note
Legend.
(iv) Initial Notes and Additional
Notes offered and sold in reliance on Regulation S will be issued
as provided in Section 2.11(a).
(c)
If the Company determines (upon the advice of counsel and such
other certifications and evidence as the Company may reasonably
require) that a Note is eligible for resale pursuant to Rule 144
under the Securities Act (or a successor rule) and that the
Restricted Legend is no longer necessary or appropriate in order to
ensure that subsequent transfers of the Note (or a beneficial
interest therein) are effected in compliance with the Securities
Act, the Company may instruct the Trustee to cancel the Note and
issue to the Holder thereof (or to its transferee) a new Note of
like tenor and amount, registered in the name of the Holder thereof
(or its transferee), that does not bear the Restricted Legend, and
the Trustee will comply with such instruction.
(d)
By its acceptance of any Note bearing the Restricted Legend (or any
beneficial interest in such a Note), each Holder thereof and each
owner of a beneficial interest therein acknowledges the
restrictions on transfer of such Note (and any such beneficial
interest) set forth in this Indenture and in the Restricted Legend
and agrees that it will transfer such Note (and any such beneficial
interest) only in accordance with the Indenture and such
legend.
Section 2.02. Execution and Authentication;
Additional Notes. (a) An Officer shall execute the
Notes for the Company by facsimile or manual signature in the name
and on behalf of the Company. If an Officer whose signature is on a
Note no longer holds that office at the time the Note is
authenticated, the Note will still be valid.
(b)
A Note will not be valid until the Trustee manually signs the
certificate of authentication on the Note, with the signature
conclusive evidence that the Note has been authenticated under the
Indenture.
(c)
At any time and from time to time after the execution and delivery
of the Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication. The Trustee will
authenticate and deliver
(i) Notes for original issue in
the aggregate principal amount not to exceed $400,000,000, and
(ii) Additional Notes from time to
time for original issue in aggregate principal amounts specified by
the Company after the following conditions have been met:
(1) Receipt by the
Trustee of an Officers’ Certificate specifying
(A)
the amount of Notes to be authenticated and the date on which such
Notes are to be authenticated,
(B)
whether such Notes are to be Initial Notes or Additional Notes,
(C)
in the case of Additional Notes, that the issuance of such Notes
does not contravene any provision of Article 4 of the Indenture,
and
(D)
other information the Company may determine to include or the
Trustee may reasonably request.
(2) In the case of
Additional Notes, receipt by the Trustee of an Opinion of Counsel
confirming that such Additional Notes are fungible with the Initial
Notes for U.S. federal income tax purposes. Additional Notes
will be fungible with the Initial Notes if they are issued pursuant
to a qualified reopening under Treasury Regulations section
1.1275-2(k) or are issued with no original issue discount, or less
than the de minimis amount of original issue discount, for
U.S. federal income tax purposes.
Section 2.03. Registrar, Paying Agent and
Authenticating Agent; Paying Agent to Hold Money in Trust.
(a) The Company may appoint one or more Registrars and
one or more Paying Agents, and the Trustee may appoint an
Authenticating Agent, in which case each reference in the Indenture
to the Trustee in respect of the obligations of the Trustee to be
performed by that Agent will be deemed to be references to the
Agent. The Company may act as Registrar or (except for purposes of
Article 8) Paying Agent. In each case the Company and the Trustee
will enter into an appropriate agreement with the Agent
implementing the provisions of the Indenture relating to the
obligations of the Trustee to be performed by the Agent and the
related rights. The Company initially appoints the Trustee as
Registrar and Paying Agent.
(b)
The Company will require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for
the benefit of the Holders or the Trustee all money held by the
Paying Agent for the payment of principal of and interest on the
Notes and will promptly notify the Trustee of any default by the
Company in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any
time during the continuance of any payment default, upon written
request to a Paying Agent, require the Paying Agent to pay all
money held by it to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent will have no further
liability for the money so paid over to the Trustee.
Section 2.04. Replacement Notes. If a
mutilated Note is surrendered to the Trustee or if a Holder claims
that its Note has been lost, destroyed or wrongfully taken, the
Company will issue and the Trustee will authenticate a replacement
Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding. Every replacement Note is an
additional obligation of the Company and entitled to the benefits
of the Indenture. If required by the Trustee or the Company, an
indemnity must be furnished that is sufficient in the judgment of
both the Trustee and the Company to protect the Company and the
Trustee from any loss they may suffer if a Note is replaced. The
Company may charge the Holder for the expenses of the Company and
the Trustee in replacing a Note. In case the mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become
due and payable, the Company in its discretion may pay the Note
instead of issuing a replacement Note.
Section 2.05. Outstanding Notes. (a) Notes
outstanding at any time are all Notes that have been authenticated
by the Trustee except for:
(i)
Notes cancelled by the Trustee or delivered to it for
cancellation;
(ii)
any Note which has been replaced pursuant to Section 2.04 unless
and until the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide
purchaser; and
(iii)
on or after the maturity date or any redemption date or date for
purchase of the Notes pursuant to a Change of Control Offer, those
Notes payable or to be redeemed or purchased on that date for which
the Trustee (or Paying Agent, other than the Company or an
Affiliate of the Company) holds money sufficient to pay all amounts
then due.
(b)
A Note does not cease to be outstanding because the Company or one
of its Affiliates holds the Note, provided that in
determining whether the Holders of the requisite principal amount
of the outstanding Notes have given or taken any request, demand,
authorization, direction, notice, consent, waiver or other action
hereunder, Notes owned by the Company or any Affiliate of the
Company will be disregarded and deemed not to be outstanding (it
being understood that in determining whether the Trustee is
protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Notes
which a Responsible Officer of the Trustee actually knows to be so
owned will be so disregarded). Notes 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 Notes and that the pledgee is
not the Company or any Affiliate of the Company.
Section 2.06. Temporary Notes. Until
definitive Notes are ready for delivery, the Company may prepare
and the Trustee will authenticate temporary Notes. Temporary Notes
will be substantially in the form of definitive Notes but may have
insertions, substitutions, omissions and other variations
determined to be appropriate by the Officer executing the temporary
Notes, as evidenced by the execution of the temporary Notes. If
temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes will be exchangeable for
definitive Notes upon surrender of the temporary Notes at the
office or agency of the Company designated for the purpose pursuant
to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any temporary Notes, the Company will execute and
the Trustee will authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes will be
entitled to the same benefits under the Indenture as definitive
Notes.
Section 2.07. Cancellation. The Company at
any time may deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the
Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. Any Registrar
or the Paying Agent will forward to the Trustee any Notes
surrendered to it for transfer, exchange or payment. The Trustee
will cancel all Notes surrendered for transfer, exchange, payment
or cancellation and dispose of them in accordance with its normal
procedures or the written instructions of the Company. The Company
may not issue new Notes to replace Notes it has paid in full or
delivered to the Trustee for cancellation.
Section 2.08. CUSIP and CINS Numbers . The
Company in issuing the Notes may use “CUSIP” and
“CINS” numbers for the Notes, and the Trustee will use
CUSIP numbers or CINS numbers in notices of redemption and in
Change of Control Offers as a convenience to Holders, the notice to
state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any
notice of redemption or Change of Control Offer. The Company will
promptly notify the Trustee of any change in the CUSIP or CINS
numbers.
Section 1.03. Registration, Transfer and
Exchange. (a) The Notes will be issued in
registered form only, without coupons, and except under the
circumstances described in subsections (b)(ii) or (b)(iv) of this
Section 2.09, the Notes will be issued in global form only. The
Company shall cause the Trustee to maintain a register (the
“Register” ) of the Notes, for
registering the record ownership of Notes by the Holders thereof
and transfers and exchanges of the Notes.
(b) (i) Each Global Note will be
registered in the name of the Depositary or its nominee and, so
long as DTC is serving as the Depositary thereof, will bear the DTC
Legend.
(ii)
Each Global Note will be delivered to the Trustee as custodian for
the Depositary. Transfers of a Global Note (but not a beneficial
interest therein) will be limited to transfers thereof in whole,
but not in part, to the Depositary, its successors or their
respective nominees, except (x) as set forth in Section 2.09(b)(iv)
and (y) transfers of portions thereof in the form of Certificated
Notes may be made upon request of an Agent Member (for itself or on
behalf of a beneficial owner) by written notice given to the
Trustee by or on behalf of the Depositary in accordance with
customary procedures of the Depositary and in compliance with this
Section and Section 2.10.
(iii)
Agent Members will have no rights under the Indenture with respect
to any Global Note held on their behalf by the Depositary, and the
Depositary may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner and Holder of
such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and
otherwise authorize any Person (including any Agent Member and any
Person that holds a beneficial interest in a Global Note through an
Agent Member) to take any action which a Holder is entitled to take
under the Indenture or the Notes, and nothing herein will impair,
as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a
holder of any security.
(iv)
If (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for a Global Note and a successor
depositary is not appointed by the Company within 90 days of the
notice or (y) an Event of Default has occurred and is continuing
and the Trustee has received a request from the Depositary, the
Trustee will promptly exchange each beneficial interest in each
Global Note for one or more Certificated Notes in authorized
denominations having an equal aggregate principal amount registered
in the name of the owner of such beneficial interest, as identified
to the Trustee by the Depositary, and thereupon each Global Note
will be deemed canceled. If a Global Note does not bear the
Restricted Legend, then the Certificated Notes issued in exchange
therefor will not bear the Restricted Legend. If a Global Note
bears the Restricted Legend, then the Certificated Notes issued in
exchange therefor will bear the Restricted Legend, provided that
any Holder of any such Certificated Note issued in exchange for a
beneficial interest in a Temporary Offshore Global Note will have
the right upon presentation to the Trustee of a duly completed
Certificate of Beneficial Ownership after the Restricted Period to
exchange such Certificated Note for a Certificated Note of like
tenor and amount that does not bear the Restricted Legend,
registered in the name of such Holder.
(c)
Each Certificated Note issued pursuant to subsection (b)(iv) will
be registered in the name of the Holder thereof or its nominee.
(d)
A Holder may transfer a Note (or a beneficial interest therein) to
another Person or exchange a Note (or a beneficial interest
therein) for another Note or Notes of any authorized denomination
by presenting to the Trustee a written request therefor stating the
name of the proposed transferee or requesting such an exchange,
accompanied by any certification, opinion or other document
required by Section 2.10. The Trustee will promptly register any
transfer or exchange that meets the requirements of this Section by
noting the same in the register maintained by the Trustee for the
purpose; provided that:
(i)
no transfer or exchange will be effective until it is registered in
such register and
(ii)
the Trustee will not be required (x) to issue, register the
transfer of or exchange any Note for a period of 15 days before a
selection of Notes to be redeemed or purchased pursuant to a Change
of Control Offer, (y) to register the transfer of or exchange any
Note so selected for redemption or purchase in whole or in part,
except, in the case of a partial redemption or purchase, that
portion of any Note not being redeemed or purchased, or (z) if a
redemption or a purchase pursuant to a Change of Control Offer is
to occur after a Regular Record Date but on or before the
corresponding Interest Payment Date, to register the transfer of or
exchange any Note on or after the Regular Record Date and before
the date of redemption or purchase. Prior to the registration of
any transfer, the Company, the Trustee and their agents will treat
the Person in whose name any Note is registered as the owner and
Holder thereof for all purposes (whether or not the Note is
overdue), and will not be affected by notice to the contrary.
From time to time the Company will
execute and the Trustee will authenticate additional Notes as
necessary in order to permit the registration of a transfer or
exchange in accordance with this Section.
No service charge will be imposed in
connection with any transfer or exchange of any Note, but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than a transfer tax or other similar governmental
charge payable upon exchange pursuant to subsection (b)(iv)).
(e) (i) Global Note to Global
Note. If a beneficial interest in a Global Note is transferred
or exchanged for a beneficial interest in another Global Note, the
Trustee will (x) record a decrease in the principal amount of the
Global Note being transferred or exchanged equal to the principal
amount of such transfer or exchange and (y) record a like increase
in the principal amount of the other Global Note. Any beneficial
interest in one Global Note that is transferred to a Person who
takes delivery in the form of an interest in another Global Note,
or exchanged for an interest in another Global Note, will, upon
transfer or exchange, cease to be an interest in such Global Note
and become an interest in the other Global Note and, accordingly,
will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such
an interest.
(ii) Certificated Note to
Certificated Note. If a Certificated Note is transferred or
exchanged for another Certificated Note, the Trustee will (x)
cancel the Certificated Note being transferred or exchanged, (y)
deliver one or more new Certificated Notes in authorized
denominations having an aggregate principal amount equal to the
principal amount of such transfer or exchange to the transferee (in
the case of a transfer) or the Holder of the canceled Certificated
Note (in the case of an exchange), registered in the name of such
transferee or Holder, as applicable, and (z) if such transfer or
exchange involves less than the entire principal amount of the
canceled Certificated Note, deliver to the Holder thereof one or
more Certificated Notes in authorized denominations having an
aggregate principal amount equal to the untransferred or
unexchanged portion of the canceled Certificated Note, registered
in the name of the Holder thereof.
Section 2.10. Restrictions on Transfer and
Exchange . (a) The transfer or exchange of any Note (or
a beneficial interest therein) may only be made in accordance with
this Section and Section 2.09 and, in the case of a Global Note (or
a beneficial interest therein), the applicable rules and procedures
of the Depositary. The Trustee shall refuse to register any
requested transfer or exchange that does not comply with the
preceding sentence.
(b)
Subject to paragraph (c), the transfer or exchange of any Note (or
a beneficial interest therein) of the type set forth in column A
below for a Note (or a beneficial interest therein) of the type set
forth opposite in column B below may only be made in compliance
with the certification requirements (if any) described in the
clause of this paragraph set forth opposite in column C below.
| A |
B |
C |
| U.S. Global Note |
U.S. Global Note |
(i) |
| U.S. Global Note |
Offshore Global Note |
(ii) |
| Certificated Note |
Certificated Note |
(iii) |
| Offshore Global Note |
U.S. Global Note |
(iv) |
| Offshore Global Note |
Offshore Global Note |
(i) |
(i)
No certification is required.
(ii)
The Person requesting the transfer or exchange must deliver or
cause to be delivered to the Trustee a duly completed Regulation S
Certificate.
(iii)
The Person requesting the transfer or exchange must deliver or
cause to be delivered to the Trustee (x) a duly completed Rule 144A
Certificate or (y) a duly completed Regulation S Certificate,
and/or an Opinion of Counsel and such other certifications and
evidence as the Company may reasonably require in order to
determine that the proposed transfer or exchange is being made in
compliance with the Securities Act and any applicable securities
laws of any state of the United States; provided that if
the requested transfer or exchange is made by the Holder of a
Certificated Note that does not bear the Restricted Legend, then no
certification is required. In the event that (1) the requested
transfer or exchange takes place after the Restricted Period and a
duly completed Regulation S Certificate is delivered to the Trustee
or (2) a Certificated Note that does not bear the Restricted Legend
is surrendered for transfer or exchange, upon transfer or exchange
the Trustee will deliver a Certificated Note that does not bear the
Restricted Legend.
(iv)
The Person requesting the transfer or exchange must deliver or
cause to be delivered to the Trustee a duly completed Rule 144A
Certificate.
(c)
No certification is required in connection with any transfer or
exchange of any Note (or a beneficial interest therein) after such
Note (i) is eligible for resale pursuant to Rule 144 under the
Securities Act (or a successor provision); provided that the
Company has provided the Trustee with an Officer’s
Certificate to that effect, and the Company may require from any
Person requesting a transfer or exchange in reliance upon this
clause an opinion of counsel and any other reasonable
certifications and evidence in order to support such certificate;
or
(ii)
sold pursuant to an effective registration statement, Any
Certificated Note delivered in reliance upon this paragraph will
not bear the Restricted Legend.
(d)
The Trustee will retain copies of all certificates, opinions and
other documents received in connection with the transfer or
exchange of a Note (or a beneficial interest therein), and the
Company will have the right to inspect and make copies thereof at
any reasonable time upon reasonable prior written notice to the
Trustee.
Section 2.11. Temporary Offshore Global Notes.
(a) Each Note originally sold by the Initial Purchasers in
reliance upon Regulation S will be evidenced by one or more
Offshore Global Notes that bear the Temporary Offshore Global Note
Legend.
(b)
An owner of a beneficial interest in a Temporary Offshore Global
Note (or a Person acting on behalf of such an owner) may provide to
the Trustee (and the Trustee will accept) a duly completed
Certificate of Beneficial Ownership at any time after the
Restricted Period (it being understood that the Trustee will not
accept any such certificate during the Restricted Period). Promptly
after acceptance of a Certificate of Beneficial Ownership with
respect to such a beneficial interest, the Trustee will cause such
beneficial interest to be exchanged for an equivalent beneficial
interest in a Permanent Offshore Global Note, and will (x)
permanently reduce the principal amount of such Temporary Offshore
Global Note by the amount of such beneficial interest and (y)
increase the principal amount of such Permanent Offshore Global
Note by the amount of such beneficial interest.
(c)
Notwithstanding anything to the contrary contained herein,
beneficial interests in a Temporary Offshore Global Note may be
held through the Depositary only through Euroclear and Clearstream
and their respective direct and indirect participants.
(d)
Notwithstanding paragraph (b), if after the Restricted Period any
Initial Purchaser owns a beneficial interest in a Temporary
Offshore Global Note, such Initial Purchaser may, upon written
request to the Trustee accompanied by a certification as to its
status as an Initial Purchaser, exchange such beneficial interest
for an equivalent beneficial interest in a Permanent Offshore
Global Note, and the Trustee will comply with such request and will
(x) permanently reduce the principal amount of such Temporary
Offshore Global Note by the amount of such beneficial interest and
(y) increase the principal amount of such Permanent Offshore Global
Note by the amount of such beneficial interest.
ARTICLE 3
OPTIONAL REDEMPTION
Section 3.01. Optional Redemption. (a) The
Notes are subject to redemption upon not less than 30 nor more than
60 days notice mailed to each holder of Notes to be redeemed at its
address appearing in the Register, at any time prior to maturity as
a whole or in part, at the election of the Company at a price (the
“Redemption Price” ) equal to the
greater of:
(i)
100% of the principal amount of the Notes being redeemed; or
(ii)
the sum of the present values of the remaining scheduled payments
of principal of and interest on the Notes being redeemed discounted
to the date of redemption on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal
to the Treasury Yield plus 50 basis points;
plus, for (i) or (ii) above,
whichever is applicable, accrued interest on such notes to the date
of redemption.
(b)
Under the procedures set forth above, the Redemption Price payable
upon the optional redemption at any time of any Notes called for
redemption shall be determined by calculating the present value at
that time of each remaining payment of principal of or interest on
such Notes and then totaling those present values. If the sum of
those present values is equal to or less than 100% of the principal
amount of the Notes called for redemption, the Redemption Price of
such Notes shall be 100% of its principal amount (redemption at
par). If the sum of the present values is greater than 100% of the
principal amount of the Notes called for redemption, the Redemption
Price of such Notes shall be that greater amount (redemption at a
premium). In no event may any Notes be redeemed optionally at less
than 100% of their principal amount.
Section 3.02. Method and Effect of Redemption
. (a) If the Company elects to redeem any Notes, it must
notify the Trustee of the redemption date, the principal amount of
Notes to be redeemed by delivering an Officers’ Certificate
at least 15 days prior to the date of the mailing of the notice
(unless a shorter period is satisfactory to the Trustee). If fewer
than all of the Notes are being redeemed, the Officers’
Certificate must also specify a record date not less than 15 days
after the date of the notice of redemption is given to the Trustee,
and the Trustee will select the Notes to be redeemed pro rata, by
lot or by any other method the Trustee in its sole discretion deems
appropriate, in denominations of $1,000 principal amount and
multiples thereof. The Trustee will notify the Company promptly of
the Notes or portions of Notes to be called for redemption. Notice
of redemption must be sent by the Company or at the Company’s
request, by the Trustee in the name and at the expense of the
Company, to Holders whose Notes are to be redeemed at least 30 days
but not more than 60 days before the redemption date.
(b)
The notice of redemption will identify the Notes to be redeemed and
will include or state the following:
(i)
the redemption date;
(ii)
the Redemption Price, including the portion thereof representing
any accrued interest;
(iii)
the place or places where Notes are to be surrendered for
redemption;
(iv)
Notes called for redemption must be so surrendered in order to
collect the Redemption Price;
(v)
on the redemption date the Redemption Price will become due and
payable on Notes called for redemption, and interest on Notes
called for redemption will cease to accrue on and after the
redemption date;
(vi)
if any Note is redeemed in part, on and after the redemption date,
upon surrender of such Note, new Notes equal in principal amount to
the unredeemed portion will be issued; and
(vii)
if any Note contains a CUSIP or CINS number, no representation is
being made as to the correctness of the CUSIP or CINS number either
as printed on the Notes or as contained in the notice of redemption
and that the Holder should rely only on the other identification
numbers printed on the Notes.
(c)
Once notice of redemption is sent to the Holders, Notes called for
redemption become due and payable at the Redemption Price on the
redemption date, and upon surrender of the Notes called for
redemption, the Company shall redeem such Notes at the Redemption
Price. Commencing on the redemption date, Notes redeemed will cease
to accrue interest. Upon surrender of any Note redeemed in part,
the Holder will receive a new Note equal in principal amount to the
unredeemed portion of the surrendered Note.
Section 3.03. Sinking Fund. No sinking fund is
provided for the Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes. (a) The Company
agrees to pay the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the
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