Exhibit C(5)
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PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
Fifty-fifth Supplemental Indenture
Dated: July 1, 2003
First Mortgage Bonds,
Medium Term Note Series VI
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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This FIFTY-FIFTH SUPPLEMENTAL INDENTURE (hereafter this "Supplemental
Indenture"), dated July 1, 2003, is made by and between Portland General
Electric Company, an Oregon corporation (hereinafter called the "Company"), and
HSBC Bank USA (formerly The Marine Midland Trust Company of New York), a New
York banking corporation and trust company (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as bonds of an initial series designated "First Mortgage Bonds, 3 1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
Supplemental
Indenturet Dated Series Designation Principal Amount
---------- ----- ------------------ ----------------
First 11-1-47 3-1/2 % Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2 % Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2 % Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8 % Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8 % Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4 % Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8 % Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2 % Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4 % Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8 % Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8 % Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4 % Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4 % Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70 % Series due 1995 14,000,000 (1)
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Supplemental
Indenturet Dated Series Designation Principal Amount
---------- ----- ------------------ ----------------
Fifteenth 6-1-66 5-7/8 % Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60 % Series due October 1, 1997 24,000,000 (1)
Seventeenth 4-1-70 8-3/4 % Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8 % Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8 % Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4 % Series due November 1, 2002 20,000,000 (4)
Twenty-first 4-1-73 7.95 % Series due April 1, 2003 35,000,000 (4)
Twenty-second 10-1-73 8-3/4 % Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2 % Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10 % Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8 % Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8 % Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2 % Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4 % Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4 % Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40 % Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80 % Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4 % Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8 % Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2 % Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8 % Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4 % Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8 % Series due March 1, 2016 100,000,000 (4)
Xxxxxxxx 00-0-00 Xxxxxx Xxxx Note Series 200,000,000
Xxxxx-xxxxx 00-0-00 Xxxxxx Xxxx Note Series I 150,000,000
Forty-second 4-1-93 7-3/4 % Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Note Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Note Series III 75,000,000 (1)
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Supplemental
Indenturet Dated Series Designation Principal Amount
---------- ----- ------------------ ----------------
Forty-fifth 5-1-95 Medium Term Note Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Note Series V 50,000,000 (1)
Forty-seventh 12-14-01 Second Series due 2002 150,000,000 (4)
Forty-eighth 6-1-02 Collateral Series due 2003 72,000,000 (1)
Forty-ninth 6-1-02 Second Collateral Series due 2003 150,000,000 (1)
Fiftieth 10-1-02 8-1/8 % Series Due 2010 150,000,000
Fifty-first 10-1-02 5.6675 % Series Due 2012 100,000,000
Fifty-second 4-1-03 5.279 % Series Due 2013 50,000,000
Fifty-third 5-1-03 Collateral Series A due 2033 142,400,000
Collateral Series B due 2033
Collateral Series C due 2033
Fifty-fourth 5-1-03 Collateral Series due 2004 150,000,000
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale
of First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series,"
"Bonds of the 1977 Second Series," "Bonds of the 1983 Series," "Bonds of the
1984 Series," "Bonds of the 1986 Series," "Bonds of the 4-7/8% Series due 1987,"
"Bonds of the 5 1/2% Series due 1987," "Bonds of the 1990 Series," "Bonds of the
1991 Series," "Bonds of the 4-5/8% Series due 1993," "Bonds of the 4 3/4% Series
due 1993," "Bonds of the 1994 Series," "Bonds of the 1995 Series," "Bonds of the
1996 Series," "Bonds of the 1997 Series," "Bonds of the 1977 Third Series,"
"Bonds of the 2000 Series," "Bonds of the 2001 Series," "Bonds of the 2002
Series," "Bonds of the 2003 Series," "Bonds of the 2003 Second Series," "Bonds
of the 1980 Series," "Bonds of the 1982 Series," "Bonds of the 1985 Series,"
"Bonds of the 2005 Series," "Bonds of the 2006 Series," "Bonds of the 1996
Second Series," "Bonds of the 2007 Series," "Bonds of the 1999 Series," "Bonds
of the 1998 Series," "Bonds of the 2000 Second Series," "Bonds of the 2010
Series," "Bonds of the 2012 Series," "Bonds of the Extendable Series A," "Bonds
of the 1995 Second Series," "Bonds of the 2016 Series," "Bonds of the Medium
Term Note Series," "Bonds of the Medium Term Note Series I," "Bonds of the 2023
Series," "Bonds of the Medium Term Note Series II," "Bonds of the Medium Term
Note Series III," "Bonds of the Medium Term Note Series IV," "Bonds of the
Medium Term Note Series V," "Bonds of the 2002 Second Series," "Bonds of the
Collateral Series," "Bonds of the Second Collateral Series," "Bonds of the 2010
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Second Series," "Bonds of the 2012 Second Series," "Bonds of the 2013 Series,"
"Bonds of the 2033 Series," and "Bonds of the 2004 Collateral Series,"
respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto, which
shall thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the bonds of any one or more series, of such character
and of such amount, and upon such terms and conditions as shall be contained in
such supplemental indenture; and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee fifty-four supplemental indentures amending in certain respects the
Original Indenture (such Original Indenture as so supplemented and amended is
hereinafter referred to as the "Mortgage"); and
WHEREAS, the Company desires to further amend the Mortgage in certain
respects pursuant to Section 17.01 of the Original Indenture, and the Trustee
has agreed to such amendments; and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, Medium Term Note Series
VI" (sometimes herein referred to as the "Bonds of the Medium Term Note Series
VI"), and to specify the form and provisions of the Bonds of the Medium Term
Note Series VI, and to mortgage, pledge, convey, transfer or assign to the
Trustee and to subject to the lien of the Mortgage certain additional properties
acquired by the Company since the execution and delivery of the Original
Indenture; and
WHEREAS, the Company intends at this time and from time to time to
issue Bonds of the Medium Term Note Series VI in an aggregate principal amount
not to exceed $200,000,000 under and in accordance with the terms of the
Mortgage and this Supplemental Indenture (the Mortgage as so supplemented and
amended by this Supplemental Indenture referred to as the "Indenture"); and
WHEREAS, the Bonds of the Medium Term Note Series VI and the Trustee's
authentication certificate to be executed on the Bonds of the Medium Term Note
Series VI are to be substantially in the following form, respectively:
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(Form of Bond of the Medium Term Note Series VI)
[Face of Bond]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A
TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (4) IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY)
AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF EACH
STATE OF THE UNITED STATES. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (4)
ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AND THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE
TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
If issued in global form and deposited with, or on behalf of, The Depository
Trust Company or its nominee (a "Global Bond"), include the following:
THIS GLOBAL BOND IS HELD BY THE DEPOSITORY (AS DEFINED IN THE MORTGAGE AND
SUPPLEMENTAL INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.08 OF THE SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 1.08 (a) OF THE SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.06
OF THE MORTGAGE AND (IV) THIS GLOBAL BOND MAY BE TRANSFERRED 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 SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
Registered Registered
No. ______ $_________
CUSIP No. _____
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PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, MEDIUM TERM NOTE SERIES VI
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
%
INTEREST PAYMENT DATES: INTEREST PAYMENT PERIOD:
OPTIONAL REPAYMENT DATE(S): MAKEWHOLE SPREAD:
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
........................................, or registered assigns,
................................................................................
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date), and to pay interest thereon at the Interest
Rate per annum specified above, until the principal hereof is paid or duly made
available for payment, monthly, quarterly, semiannually or annually, as
specified above as the Interest Payment Period, and on the Interest Payment
Dates specified above, in each year commencing on the first Interest Payment
Date next succeeding the Original Issue Date specified above, unless the
Original Issue Date occurs between a Regular Record Date, as defined below, and
the next succeeding Interest Payment Date, in which case commencing on the
second Interest Payment Date succeeding the Original Issue Date, to the
registered holder of this bond on the Regular Record Date with respect to such
Interest Payment Date, and on the Maturity Date shown above (or any Redemption
Date as described on the reverse hereof or any Optional Repayment Date specified
above). Interest on this bond will accrue from the most recent Interest Payment
Date to which interest has been paid or duly provided for or, if no interest has
been paid, from the Original Issue Date specified above, until the principal
hereof has been paid or duly made available for payment. If the Maturity Date
(or any Redemption Date or any Optional Repayment Date) or an Interest Payment
Date falls on a day which is not a Business Day, as defined below, principal or
interest payable with respect to such Maturity Date (or Redemption Date or
Optional Repayment Date) or Interest Payment Date will be paid on the next
succeeding Business Day with the same force and effect as if made on such
Maturity Date (or Redemption Date or Optional Repayment Date) or Interest
Payment Date, as the case may be, and no interest shall accrue for the period
from and after such Maturity Date (or Redemption Date or Optional Repayment
Date) or Interest Payment Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, subject to certain
exceptions, be paid to the person in whose name this bond (or one or more
predecessor bonds) is registered at the close of business on the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date (the
"Regular Record Date");
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provided, however, that interest payable on the Maturity Date (or any Redemption
Date or any Optional Repayment Date) will be payable to the person to whom the
principal hereof shall be payable. Should the Company default in the payment of
interest ("Defaulted Interest"), the Defaulted Interest shall be paid to the
person in whose name this bond (or one or more predecessor bonds) is registered
on a subsequent record date fixed by the Company, which subsequent record date
shall be fifteen (15) days prior to the payment of such Defaulted Interest. As
used herein, "Business Day" means any day, other than a Saturday or Sunday, on
which banks in The City of New York are not required or authorized by law to
close.
Payment of the principal of and interest on this bond will be made in
immediately available funds 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 payment
of interest on any Interest Payment Date other than the Maturity Date (or any
Redemption Date or any Optional Repayment Date) may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear in the bond register of the Company. A person holding
$10,000,000 or more in aggregate principal amount of bonds having the same
Interest Payment Date (whether having identical or different terms and
provisions) will be entitled to receive payments of interest by wire transfer of
immediately available funds if appropriate written wire transfer instructions
have been received by the Trustee not less than sixteen days prior to the
applicable Interest Payment Date.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, including terms of redemption, and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated: _____________________
PORTLAND GENERAL ELECTRIC COMPANY
By: ______________________________________
Title:
Attest: _____________________
Assistant Secretary
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(Form of Trustee's Authentication Certificate for
Bonds of the Medium Term Note Series VI)
This is one of the bonds, of the series designated herein, described in the
within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE
By: _______________________________
Authorized Officer
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[Reverse of Bond]
This bond is one of the bonds of a series designated as Medium Term
Note Series VI of an authorized issue of bonds of the Company, known as First
Mortgage Bonds, not limited as to maximum aggregate principal amount, all issued
or issuable in one or more series under and equally secured (except insofar as
any sinking fund, replacement fund or other fund established in accordance with
the provisions of the Indenture hereinafter mentioned may afford additional
security for the bonds of any specific series) by an Indenture of Mortgage and
Deed of Trust dated July 1, 1945, duly executed and delivered by the Company to
HSBC Bank USA (formerly known as The Marine Midland Trust Company of New York),
as Trustee, as supplemented, amended and modified by fifty-four supplemental
indentures and by the Fifty-fifth Supplemental Indenture (such Indenture of
Mortgage and Deed of Trust as so supplemented, amended and modified by such
fifty-four supplemental indentures and the Fifty-fifth Supplemental Indenture
being hereinafter called the "Indenture"), to which Indenture reference is
hereby made for a description of the property mortgaged and pledged as security
for said bonds, the nature and extent of the security, and the rights, duties
and immunities thereunder of the Trustee, the rights of the holders of said
bonds and of the Trustee and of the Company in respect of such security, and the
terms upon which said bonds may be issued thereunder. Capitalized terms used
herein and not defined herein shall have the respective meanings in the
Indenture, unless otherwise noted.
This bond is not subject to any sinking fund.
This bond may be subject to repayment at the option of the holder on
the Optional Repayment Date(s), if any, indicated on the face hereof. If no
Optional Repayment Dates are set forth on the face hereof, this bond may not be
so repaid at the option of the holder hereof prior to maturity. On any Optional
Repayment Date this bond shall be repayable in whole or in part in increments of
$1,000 (provided that any remaining principal hereof shall be at least $250,000)
at the option of the holder hereof at a repayment price equal to one hundred per
cent of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For this bond to be repaid in whole or in part
at the option of the holder hereof, this bond must be received, with the form
entitled "Option to Elect Repayment" below duly completed, by the Trustee at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such address which the Company shall
from time to time notify the holders of the bonds, not more than 60 nor less
than 20 days prior to an Optional Repayment Date. Exercise of such repayment
option by the holder hereof shall be irrevocable.
This bond may be redeemed by the Company prior to maturity as a whole
at any time or in part from time to time, at the option of the Company, in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $250,000), at the greater of (i) one hundred per cent of the principal
amount to be redeemed or (ii) an amount equal to the present value of the
remaining principal and interest payments due under the bond to be redeemed (not
including any portion of such payments of interest accrued as of the Redemption
Date), discounted to the
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Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus the Makewhole Spread,
as set forth on the face of such bond, together in either case with accrued and
unpaid interest to the Redemption Date, on written notice given not more than 90
nor less than 30 days prior to such Redemption Date.
As used herein, "Redemption Date" means any date on which this bond is
to be redeemed. "Adjusted Treasury Rate" means, with respect to any Redemption
Date, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using 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. The Adjusted Treasury Rate
will be calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected
by such Independent Investment Banker as having a maturity comparable to the
remaining term of the bond to be redeemed 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 bond. "Comparable Treasury Price" means (a) the average of four
Reference Treasury Dealer Quotations for the Redemption Date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (b) if the
Independent Investment Banker obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such quotations. "Independent Investment
Banker" means U.S. Bancorp Xxxxx Xxxxxxx Inc. or any other independent
investment and banking institution of national standing appointed by the
Company. On February 19, 2003, U.S. Bancorp announced its intention to spin off
Xxxxx Xxxxxxx to create an independent publicly traded company. This spin-off
transaction is contemplated to occur in the third quarter of 2003, subject to
certain conditions including registration with the Securities and Exchange
Commission, regulatory review and approval and a determination that the spin-off
will be tax-free to U.S. Bancorp and its shareholders. If the spin-off
transaction is completed, any obligations of U.S. Bancorp Xxxxx Xxxxxxx Inc.
hereunder shall survive and become the obligations of Xxxxx Xxxxxxx. "Reference
Treasury Dealer" means a primary U.S. Government securities dealer in New York
City selected by the Independent Investment Banker. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer, the average,
as determined by the Independent Investment Banker, 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 5:00
p.m., New York City time, on the fourth Business Day preceding the Redemption
Date.
Interest payments on this bond will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date, as the case may be.
Interest payments for this bond will be computed and paid on the basis of a
360-day year of twelve 30-day months.
If this bond or any portion hereof ($1,000 or an integral multiple
hereof) is duly called for redemption and payment duly provided for as specified
in the Indenture, this bond or such portion hereof shall cease to be entitled to
the lien of the Indenture from and after the date payment is so provided for and
shall cease to bear interest from and after the date fixed for such redemption.
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In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations) for the unredeemed balance of the principal amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five per cent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty per
cent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of the holder hereof which will (a)
extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof or
reduce any premium payable on the redemption hereof, (b) permit the creation of
any lien, not otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount of the bonds
upon the approval or consent of the holders of which modifications or
alterations may be made as aforesaid.
This bond is transferable by the registered owner hereof in person or
by its attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York, upon surrender
of this bond for cancellation and upon payment of any taxes or other
governmental charges payable upon such transfer, and thereupon a new registered
bond or bonds of the same series and of a like aggregate principal amount will
be issued to the transferee or transferees in exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or an account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of the Medium Term Note Series VI are issuable only in fully
registered form without coupons in denominations of $250,000 or integral
multiples of $1,000 in excess thereof. The registered owner of this bond at its
option may surrender the same for cancellation at said office of the Trustee and
receive in exchange therefor the same aggregate principal amount of registered
bonds of the same series and with the same terms and provisions, including the
same issue date, maturity date, and redemption provisions, if any, and which
bear interest at the same rate, but of other authorized denominations, upon
payment of any taxes or other governmental charges payable upon such exchange
and subject to the terms and conditions set forth in the Indenture.
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If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding,
including in certain cases specified percentages of bonds of particular series,
may in certain cases, to the extent and as provided in the Indenture, waive
certain defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this bond (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at___________
_____________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this bond to be repaid, the Trustee must receive at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place or places of which the
Company shall from time to time notify the holder of this bond, not more than 60
nor less than 20 days prior to an Optional Repayment Date, if any, shown on the
face of this bond, this bond with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this bond is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess of
$250,000) of the bonds to be issued to the holder for the portion of this bond
not being repaid (in the absence of any such specification, one such bond will
be issued for the portion not being repaid).
$___________________________________ ____________________________________
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NOTICE: The signature on this Option
Date________________________________ to Date Elect Repayment must correspond
with the name as written upon the face
of this bond in every particular,
without alteration or enlargement or
any change whatever.
(End of Form of Bond of the Medium Term Note Series VI)
and
WHEREAS, all acts and proceedings required by law and by the charter
or articles of incorporation and bylaws of the Company necessary to make the
Bonds of the Medium Term Note Series VI to be issued hereunder, when executed by
the Company, authenticated and delivered by the Trustee and duly issued, the
valid, binding and legal obligations of the Company, and to constitute this
Supplemental Indenture a valid and binding instrument, have been done and taken;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
bonds at any time issued and outstanding under the Mortgage, as supplemented and
modified by this Supplemental Indenture, according to their tenor, purport and
effect, and to secure the performance and observance of all the covenants and
conditions therein and herein contained, and for the purpose of confirming and
perfecting the lien of the Indenture on the properties of the Company
hereinafter described, or referred to, and for and in consideration of the
premises and of the mutual covenants herein contained, and acceptance of the
Bonds of the Medium Term Note Series VI by the holders thereof, and for other
valuable consideration, the receipt whereof is hereby acknowledged, the Company
has executed and delivered this Supplemental Indenture and by these presents
does grant, bargain, sell, warrant, alien, convey, assign, transfer, mortgage,
pledge, hypothecate, set over and confirm unto the Trustee the following
property, rights, privileges and franchises (in addition to all other property,
rights, privileges and franchises heretofore subjected to the lien of the
Original Indenture as supplemented by the fifty-four supplemental indentures
hereinbefore described and not heretofore released from the lien thereof), all
of which shall secure all bonds, including the Bonds of the Medium Term Note
Series VI, to wit:
CLAUSE I
Without in any way limiting anything in the Mortgage or hereinafter
described, all and singular the lands, real estate, chattels real, interests in
land, leaseholds, ways, rights-of-way, easements, servitudes, permits and
licenses, lands under water, riparian rights, franchises, privileges, electric
generating plants, electric transmission and distribution systems, and all
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apparatus and equipment appertaining thereto, offices, buildings, warehouses,
garages, and other structures, tracks, machine shops, materials and supplies and
all property of any nature appertaining to any of the plants, systems, business
or operations of the Company, whether or not affixed to the realty, used in the
operation of any of the premises or plants or systems or otherwise, which have
been acquired by the Company since the execution and delivery of the Original
Indenture and not heretofore included in any indenture supplemental thereto, and
now owned or which may hereafter be acquired by the Company (other than excepted
property as defined in the Mortgage).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Mortgage) and all renewals, extensions, enlargements and modifications of any of
them, which have been acquired by the Company since the execution and the
delivery of the Original Indenture and not heretofore included in any indenture
supplemental thereto, and now owned or which may hereafter be acquired by the
Company.
CLAUSE III
Also all other property, real, personal or mixed, tangible or
intangible (other than excepted property as defined in the Mortgage) of every
kind, character and description and wheresoever situated, whether or not useful
in the generation, manufacture, production, transportation, distribution, sale
or supplying of electricity, hot water or steam, which have been acquired by the
Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Mortgage).
CLAUSE IV
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof (other than excepted property as defined in
the Mortgage).
TO HAVE AND TO HOLD all of said property, real, personal and mixed,
and all and singular the lands, properties, estates, rights, franchises,
privileges and appurtenances hereby mortgaged, conveyed, pledged or assigned, or
intended so to be, together with all the
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appurtenances thereto appertaining and the rents, issues and profits thereof,
unto the Trustee and its successors and assigns, forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Mortgage;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
bonds authenticated and delivered under the Original Indenture and the
fifty-four supplemental indentures hereinbefore described or this Supplemental
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one bond over any other by reason of priority in
the time of issue, sale or negotiation thereof or otherwise, except as provided
in Section 11.28 of the Mortgage, so that, subject to said Section 11.28, each
and all of said bonds shall have the same right, lien and privilege under the
Original Indenture and the fifty-four supplemental indentures hereinbefore
described, or this Supplemental Indenture, and shall be equally secured thereby
and hereby and shall have the same proportionate interest and share in the trust
estate, with the same effect as if all of the bonds had been issued, sold and
negotiated simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the fifty-four
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE MEDIUM TERM NOTE SERIES VI
AND CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the Medium Term Note Series
VI.
(a) There is hereby established a series of First Mortgage Bonds of
the Company designated and entitled as "First Mortgage Bonds, Medium Term Note
Series VI" (sometimes referred to as the "Bonds of the Medium Term Note Series
VI"). The aggregate principal amount of the Bonds of the Medium Term Note Series
VI shall be limited to Two Hundred Million Dollars ($200,000,000), excluding,
however, any Bonds of the Medium Term Note Series VI which may be executed,
authenticated and delivered in exchange for or in lieu of or in substitution for
other Bonds of such Series pursuant to the provisions of the Indenture.
(b) The definitive Bonds of the Medium Term Note Series VI shall be
issuable in substantially the Form of Bonds of the Medium Term Note Series VI
set forth in this Supplemental Indenture, in fully registered form without
coupons in the denomination of $250,000, or any amount in excess thereof that is
a multiple of $1,000. The Bonds of the Medium Term Note Series VI will be issued
in definitive form (the "Definitive Bonds")
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or in global form ("Global Bonds"). Global Bonds will be deposited with, or on
behalf of, The Depository Trust Company ("DTC" or the "Depository") or its
nominee. Except as set forth herein, holders of beneficial interests in Global
Bonds will not receive or be entitled to receive physical delivery in exchange
therefor and will not be considered to be the owners or holders of such Global
Bonds for any purpose under the Bonds of the Medium Term Note Series VI or the
Indenture. Notwithstanding the provisions of Section 2.05 of the Mortgage, each
Bond of the Medium Term Note Series VI shall be dated as of the date of its
authentication, and shall mature on such date (which shall be not less than 5
nor more than 30 years from the date of its authentication) (the "Maturity
Date"), shall bear interest at such rate or rates (which shall be fixed), and
shall have such other terms and conditions not inconsistent with the Mortgage as
the Board of Directors of the Company, or any officer of the Company acting
pursuant to authority granted by the Board of Directors, may determine (the
execution of any bond of the Medium Term Note Series VI by any authorized
officer of the Company being, with regard to any holder of such bond, conclusive
evidence of such approval). Interest on Bonds of the Medium Term Note Series VI
shall be payable on the dates (each, an "Interest Payment Date") established on
the date of first authentication of such Bond ("Original Issue Date"). Interest
on Bonds of the Medium Term Note Series VI will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid, from the Original Issue Date, until the principal
thereof has been paid or duly made available for payment. If the Maturity Date
specified on the face of a Bond (or any date on which a Bond is to be redeemed
("Redemption Date") or any Optional Repayment Date specified on the face of a
Bond ("Optional Repayment Date")) or an Interest Payment Date falls on a day
which is not a Business Day, as defined below, principal or interest payable
with respect to such Maturity Date (or Redemption Date or Optional Repayment
Date) or Interest Payment Date will be paid on the next succeeding Business Day
with the same force and effect as if made on such Maturity Date (or Redemption
Date or Optional Repayment Date) or Interest Payment Date, as the case may be,
and no interest shall in respect of such payments accrue for the period from and
after such Maturity Date (or Redemption Date or Optional Repayment Date) or
Interest Payment Date. The person in whose name any Bond of the Medium Term Note
Series VI is registered at the close of business on the fifteenth day (whether
or not a Business Day) next preceding such Interest Payment Date (the "Regular
Record Date") shall be entitled to receive the interest payable thereon on such
Interest Payment Date notwithstanding the cancellation of such Bond upon any
transfer or exchange thereof subsequent to such Regular Record Date and prior to
such Interest Payment Date; provided, however, that interest payable on the
Maturity Date (or any Redemption Date or any Optional Repayment Date) will be
payable to the person to whom the principal thereof shall be payable. Should the
Company default in the payment of interest ("Defaulted Interest") on any Bond of
the Medium Term Note Series VI, the Defaulted Interest shall be paid to the
person in whose name such Bond is registered on a subsequent record date fixed
by the Company, which subsequent record date shall be fifteen (15) days prior to
the payment of such Defaulted Interest. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, on which banks in The City of New York are
not required or authorized by law to close. The principal of the Bonds of the
Medium Term Note Series VI shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts at the office or
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agency of the Company in the Borough of Manhattan, City and State of New York,
and interest and premium, if any, on such Bonds shall be payable in like coin or
currency at said office or agency. Upon compliance with the provisions of
Section 2.06 of the Mortgage and as provided in this Supplemental Indenture, and
upon payment of any taxes or other governmental charges payable upon such
exchange, Bonds of the Medium Term Note Series VI may be exchanged for a new
Bond or Bonds of the Medium Term Note Series VI of different authorized
denominations of like aggregate principal amount.
(c) The Trustee hereunder shall, by virtue of its office as such
Trustee, be the registrar and transfer agent of the Company for the purpose of
registering permitted transfers of Bonds of the Medium Term Note Series VI.
(d) Notwithstanding the provisions of Section 2.11 of the Mortgage, no
service charge shall be made for any exchange or transfer of Bonds of the Medium
Term Note Series VI, but the Company at its option may require payment of a sum
sufficient to cover any tax or other governmental charge incident thereto.
(e) Notwithstanding anything herein to the contrary, all Bonds of the
Medium Term Note Series VI having the same Maturity Date shall be identical as
to rate of interest and terms of redemption, if redeemable.
SECTION 1.02. Repayment and Redemption Provisions for Bonds of the
Medium Term Note Series VI.
(a) The Bonds of the Medium Term Note Series VI may be subject to
repayment at the option of the holder on the Optional Repayment Date(s), if any,
set forth on the face thereof. If no Optional Repayment Dates are set forth on
the face thereof, the Bonds may not be so repaid at the option of the holder of
such Bond prior to maturity. On any Optional Repayment Date, the Bonds of the
Medium Term Note Series VI shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal thereof shall be at least
$250,000) at the option of the holder thereof at a repayment price equal to 100
per cent of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For the Bond of the Medium Term Note Series VI
to be repaid in whole or in part at the option of the holder thereof, such Bond
must be received, with the form entitled "Option to Elect Repayment" duly
completed, by the Trustee at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such
address which the Company shall from time to time notify the holders of the
Bonds of the Medium Term Note Series VI, not more than 60 nor less than 20 days
prior to an Optional Repayment Date. Exercise of such repayment option by the
holder thereof shall be irrevocable.
(b) In accordance with the terms of Section 5.02 and Section 5.07 of
the Mortgage and the terms of this Supplemental Indenture, the Bonds of the
Medium Term Note Series VI shall be subject to redemption prior to maturity as a
whole at any time or in part from time to time, at the option of the Company, in
increments of $1,000 (provided that
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any remaining principal thereof shall be at least $250,000), at the greater of
(i) 100 per cent of the principal amount to be redeemed or (ii) an amount equal
to the present value of the remaining principal and interest payments due under
the Bonds of the Medium Term Note Series VI to be redeemed (not including any
portion of such payments of interest accrued as of the Redemption Date),
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus the
Makewhole Spread, as set forth on the face of such Bond, together in either case
with accrued and unpaid interest to the Redemption Date.
(c) Redemption pursuant to this Section 1.02 shall take place upon
prior notice given by mailing such notice to the respective registered owners of
such Bonds of the Medium Term Note Series VI not more than ninety (90) nor less
than thirty (30) days prior to the Redemption Date and as otherwise required by
the provisions of the Mortgage.
(d) The following definitions shall apply for purposes of this Section
1.02:
(i) "Adjusted Treasury Rate" means, with respect to any
Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using 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. The Adjusted
Treasury Rate will be calculated on the third Business Day
preceding the Redemption Date.
(ii) "Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having
a maturity comparable to the remaining term of the Bonds of the
Medium Term Note Series VI to be redeemed 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 the Bonds of the
Medium Term Note Series VI.
(iii) "Comparable Treasury Price" means (A) the average of four
Reference Treasury Dealer Quotations for the Redemption Date,
after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (B) if the Independent Investment Banker obtains
fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
(iv) "Independent Investment Banker" means U.S. Bancorp Xxxxx
Xxxxxxx Inc. or any other independent investment and banking
institution of national standing appointed by the Company. On
February 19, 2003, U.S. Bancorp announced its intention to spin
off Xxxxx Xxxxxxx to create an independent publicly traded
company. This spin-off transaction is contemplated to occur in
the third quarter of 2003, subject to certain conditions
including registration with the Securities and Exchange
Commission (the "SEC"), regulatory review and approval and a
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determination that the spin-off will be tax-free to U.S. Bancorp
and its shareholders. If the spin-off transaction is completed,
any obligations of U.S. Bancorp Xxxxx Xxxxxxx Inc. hereunder
shall survive and become the obligations of Xxxxx Xxxxxxx.
(v) "Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City selected by the Independent
Investment Banker.
(vi) "Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer, the average, as determined by
the Independent Investment Banker, 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 5:00 p.m., New York City time,
on the fourth Business Day preceding the Redemption Date.
SECTION 1.03. Sections 4.04, 4.05 and 4.06 to Remain in Effect.
Notwithstanding the provisions of Sections 4.04, 4.05, 4.06 and 4.07 of the
Mortgage, the provisions of Sections 4.04, 4.05 and 4.06 of the Mortgage shall
remain in full force and effect and shall be performed by the Company so long as
any Bonds of the Medium Term Note Series VI remain outstanding.
SECTION 1.04. Certain Requirements to Remain Applicable. The
requirements which are stated in the next to the last paragraph of Section 1.13
and in Clause (9) of Paragraph A of Section 3.01 of the Mortgage to be
applicable so long as any of the Bonds of the 1975 Series are outstanding shall
remain applicable so long as any of the Bonds of the Medium Term Note Series VI
are outstanding.
SECTION 1.05. Certain Exceptions to Sections 2.06 and 2.10 of the
Mortgage. Notwithstanding the provisions of Section 2.06 or Section 2.10 of the
Mortgage, the Company shall not be required (a) to issue, register, discharge
from registration, exchange or register the transfer of any Bond of the Medium
Term Note Series VI for a period of fifteen (15) days next preceding any
selection by the Trustee of Bonds of the Medium Term Note Series VI to be
redeemed or (b) to register, discharge from registration, exchange or register
the permitted transfer of any Bond of the Medium Term Note Series VI so selected
for redemption in its entirety or (c) to exchange or register the permitted
transfer of any portion of a Bond of the Medium Term Note Series VI which
portion has been so selected for redemption.
SECTION 1.06. Reference to Minimum Provision for Depreciation in
Certificate of Available Additions. So long as any Bonds of the Medium Term Note
Series VI remain outstanding, all references to the minimum provision for
depreciation in the form of certificate of available additions set forth in
Section 3.03 of the Mortgage shall be included in any certificate of available
additions filed with the Trustee, but whenever Bonds of the Medium Term Note
Series VI shall no longer be outstanding, all references to such minimum
provisions for depreciation may be omitted from any such certificate.
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SECTION 1.07. Reporting Obligations. To the extent the Company is no
longer required to file or does not voluntarily file the following documents
with the SEC, so long as any Bonds of the Medium Term Note Series VI are
outstanding, the Company shall furnish to the Trustee, within the time periods
specified in the SEC's rules and regulations, the following:
(a) All quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the
Company were required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and its
consolidated subsidiaries and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants.
(b) All current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
The Trustee shall retain such documents in accordance with its
customary procedures. 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.
SECTION 1.08. Transfer and Exchange Provisions.
(a) Transfer and Exchange of Global Bonds. Except as expressly
permitted herein, Global Bonds may not be transferred except as a whole by DTC
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or
any such nominee to a successor of DTC or a nominee of such successor. Global
Bonds shall be exchangeable for corresponding Definitive Bonds registered in a
name other than DTC or its nominee only if (i) DTC (A) notifies the Company that
it is unwilling or unable to continue as a Depository for any of the Global
Bonds or (B) at any time ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii) there
shall have occurred and be continuing an event of default with respect to the
Bonds of the Medium Term Note Series VI or (iii) the Company executes and
delivers to the Trustee an order to the effect that the Global Bonds will be so
exchangeable. Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Bonds shall be issued in such names as the Depository
shall instruct the Trustee. Global Bonds also may be exchanged or replaced, in
whole or in part, as provided herein. Every Bond of the Medium Term Note Series
VI authenticated and delivered in exchange for, or in lieu of, a Global Bond or
any portion thereof, pursuant to this Section 1.08(a) shall be authenticated and
delivered in the form of, and shall be, a Global Bond. A Global Bond may not be
exchanged for another Bond of the Medium Term Note Series VI, whether in global
or certificated form, other than as provided in this Section 1.08.
(b) Transfer and Exchange of Beneficial Interests in the Global Bonds.
The transfer and exchange of beneficial interests in the Global Bonds shall be
effected through the
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Depository, in accordance with the provisions of the Indenture and the
applicable rules and procedures of DTC, Xxxxxx Guaranty Trust Company of New
York, Brussels office, or its successor, as operator of the Euroclear system
("Euroclear") and Clearstream Banking, societe anonyme, Luxembourg
("Clearstream") that apply to such transfer or exchange at the relevant time
(the "Applicable Procedures"). Beneficial interests in the Global Bonds shall be
subject to restrictions on transfer comparable to those set forth herein to the
extent required in order for the Company to comply with the Securities Act.
Transfers and exchanges of beneficial interests in the Global Bonds also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfers and Exchanges of Beneficial Interests in Global Bonds.
Transfers of beneficial interest in the Bonds of the Medium Term Note
Series VI shall require delivery to the Trustee, as registrar, by the
transferor of either (A)(1) an order from a person who has an account
with DTC, Euroclear or Clearstream (a "Participant") or an entity that
clears through or maintains a direct or indirect custodial
relationship with a Participant (an "Indirect Participant") given to
the Depository in accordance with the Applicable Procedures directing
the Depository to credit or cause to be credited a beneficial interest
in another Global Bond in an amount equal to the beneficial interest
to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B)(1) an order from a Participant or an Indirect Participant given to
the Depository in accordance with the Applicable Procedures directing
the Depository to cause to be issued a Definitive Bond in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depository to the Trustee, as registrar,
containing information regarding the person in whose name such
Definitive Bond shall be registered to effect the transfer or exchange
referred to in (B)(1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Bonds contained in the Indenture and the Bonds of the Medium
Term Note Series VI or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Bond(s) pursuant to the Indenture.
(ii) Transfer and Exchange of Beneficial Interests in a Global Bond
for Beneficial Interests in the Unrestricted Global Bond. A beneficial
interest in any Global Bond may be exchanged for a beneficial interest
in a Global Bond not bearing or required to bear the private placement
legend (the "Private Placement Legend") set forth on the form of face
of the Bonds of the Medium Term Note Series VI and in Section
1.08(f)(i) below (an "Unrestricted Global Bond") or transferred to a
person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Bond if the exchange or transfer complies
with the requirements of Section 1.08(b)(i) and the Trustee, as
registrar, receives the following: (A) if the holder of such
beneficial interest in a Global Bond proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted
Global Bond, a certificate from such holder substantially in the form
of Exhibit B hereto, including the certifications in item (1)(a)
thereof; or (B) if the holder of such beneficial interest in a Global
Bond proposes to transfer such beneficial interest to a person who
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shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond, a certificate from such holder substantially
in the form of Exhibit A hereto, including the certifications in item
(4) thereof; and a written opinion of legal counsel, reasonably
acceptable to the Trustee, as registrar, and the Company to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act ("Opinion of Counsel").
If any such transfer is effected pursuant to the foregoing at a time when an
Unrestricted Global Bond has not yet been issued, the Company shall issue and,
upon receipt of an authentication order in accordance with the terms of the
Indenture, the Trustee shall authenticate one or more Unrestricted Global Bonds
in an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subclause (ii) above. Beneficial
interests in an Unrestricted Global Bond cannot be exchanged for, or transferred
to persons who take delivery thereof in the form of, a beneficial interest in a
Global Bond containing the Private Placement Legend.
(c) Transfer or Exchange of Beneficial Interests in Global Bonds for
Definitive Bonds.
(i) Beneficial Interests in Global Bonds to Definitive Bonds. Subject
to the limitations set forth in Sections 1.01 and 1.08(a), if any
holder of a beneficial interest in a Global Bond proposes to exchange
such beneficial interest for a Definitive Bond or to transfer such
beneficial interest to a person who takes delivery thereof in the form
of a Definitive Bond, then, upon receipt by the Trustee, as registrar,
of the following documentation:
(A) if the holder of such beneficial interest in a Global Bond
proposes to exchange such beneficial interest for a Definitive
Bond, a certificate from such holder substantially in the form of
Exhibit B hereto, including the certifications in item (2)(a)
thereof;
(B) if the holder of such beneficial interest in a Global Bond
proposes to transfer such beneficial interest to another person
who takes delivery thereof in the form of a Definitive Bond, a
certificate from such holder to the effect set forth in Exhibit A
hereto, including any certifications and opinions of counsel
required therein;
the Trustee shall cause the aggregate principal amount of the
applicable Global Bond to be reduced accordingly pursuant to Section
1.08(g), and the Company shall execute and, upon receipt of an
authentication order pursuant to the terms of the Indenture, the
Trustee shall authenticate and deliver to the person designated in the
instructions a Definitive Bond in the appropriate principal amount.
Any Definitive Bond issued in exchange for a beneficial interest in a
Global Bond pursuant to this Section 1.08(c) shall be registered in
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such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct
the Trustee, as registrar, through instructions from the Depository
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Bonds to the persons in whose names such Definitive
Bonds are so registered. Any Definitive Bond issued in exchange for a
beneficial interest in a Global Bond pursuant to this Section
1.08(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Global Bonds to Unrestricted Definitive
Bonds. Subject to the limitations set forth in Sections 1.01 and
1.08(a), a holder of a beneficial interest in a Global Bond may
exchange such beneficial interest for one or more Definitive Bonds
that do not bear and are not required to bear the Private Placement
Legend (the "Unrestricted Definitive Bonds") or may transfer such
beneficial interest to a person who takes delivery thereof in the form
of an Unrestricted Definitive Bond only if the Trustee, as registrar,
receives the following: (A) if the holder of such beneficial interest
in a Global Bond proposes to exchange such beneficial interest for an
Unrestricted Definitive Bond, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (1)(b) thereof; or (B) if the holder of such
beneficial interest in a Global Bond proposes to transfer such
beneficial interest to a person who shall take delivery thereof in the
form of an Unrestricted Definitive Bond, a certificate from such
holder substantially in the form of Exhibit A hereto, including the
certifications in item (4) thereof; and, in each such case set forth
in this subclause (ii) (except in the case of a transfer contemplated
by item (4)(a) or (d) of Exhibit A), an Opinion of Counsel.
(iii) Beneficial Interests in Unrestricted Global Bonds to
Unrestricted Definitive Bonds. Subject to the limitations set forth in
Sections 1.01 and 1.08(a), if any holder of a beneficial interest in
an Unrestricted Global Bond proposes to exchange such beneficial
interest for an Unrestricted Definitive Bond or to transfer such
beneficial interest to a person who takes delivery thereof in the form
of an Unrestricted Definitive Bond, then, upon satisfaction of the
conditions set forth in Section 1.08(b)(ii), the Trustee shall cause
the aggregate principal amount of the applicable Unrestricted Global
Bond to be reduced accordingly pursuant to Section 1.08(g), and the
Company shall execute and, upon receipt of an authentication order
pursuant to the Mortgage and this Supplemental Indenture, the Trustee
shall authenticate and deliver to the person designated in the
instructions an Unrestricted Definitive Bond in the appropriate
principal amount. Any Unrestricted Definitive Bond issued in exchange
for a beneficial interest pursuant to this Section 1.08(c)(iii) shall
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Trustee, as registrar, through
instructions from the Depository and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted Definitive
Bonds to the persons in whose names such Unrestricted Definitive Bonds
are so registered. Any Unrestricted Definitive Bond issued in exchange
for a beneficial interest in an Unrestricted Global Bond pursuant to
this Section 1.08(c)(iii) shall not bear the Private Placement Legend.
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(d) Transfer and Exchange of Definitive Bonds for Beneficial Interests
in Global Bonds.
(i) Definitive Bonds to Beneficial Interests in Global Bonds. If any
holder of a Definitive Bond proposes to exchange such Definitive Bond
for a beneficial interest in a Global Bond or to transfer such
Definitive Bond to a person who takes delivery thereof in the form of
a beneficial interest in a Global Bond, then, upon receipt by the
Trustee, as registrar, of the following documentation:
(A) if the holder of such Definitive Bond proposes to exchange
such Definitive Bond for a beneficial interest in a Global Bond,
a certificate from such holder substantially in the form of
Exhibit B hereto, including the certifications in item (2)(b)
thereof;
(B) if the holder of such Definitive Bond proposes to transfer
such Definitive Bond to another person who takes delivery thereof
in the form of a beneficial interest in a Global Bond, a
certificate from such holder to the effect set forth in Exhibit A
hereto, including any certifications and opinions of counsel
required therein;
the Trustee shall cancel the Definitive Bond, increase or cause to be
increased the aggregate principal amount of the appropriate Global
Bond.
(ii) Definitive Bonds to Beneficial Interests in Unrestricted Global
Bonds. A holder of a Definitive Bond may exchange such Definitive Bond
for a beneficial interest in an Unrestricted Global Bond or transfer
such Definitive Bond to a person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Bond only if
the Trustee, as registrar, receives the following: (A) if the holder
of such Definitive Bonds proposes to exchange such Definitive Bonds
for a beneficial interest in the Unrestricted Global Bond, a
certificate from such holder substantially in the form of Exhibit B
hereto, including the certifications in item (1)(c) thereof; or (B) if
the holder of such Definitive Bonds proposes to transfer such
Definitive Bonds to a person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Bond, a
certificate from such holder substantially in the form of Exhibit A
hereto, including the certifications in item (4) thereof; and (except
in the case of a transfer contemplated by item (4)(a) or (d) of
Exhibit A), an Opinion of Counsel. Upon satisfaction of the conditions
of this Section 1.08(d)(ii), the Trustee shall cancel the Definitive
Bonds so transferred or exchanged and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global
Bond.
(iii) Unrestricted Definitive Bonds to Beneficial Interests in
Unrestricted Global Bonds. A holder of an Unrestricted Definitive Bond
may exchange such Unrestricted Definitive Bond for a beneficial
interest in an Unrestricted Global Bond or transfer such
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Unrestricted Definitive Bonds to a person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Bond at
any time. Upon receipt of a request for such an exchange or for
registration of such a transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Bond and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Bonds.
(iv) Issuance of Unrestricted Global Bonds. If any such exchange or
transfer from a Definitive Bond to a beneficial interest in a Global
Bond is effected pursuant to subparagraphs (ii) or (iii) of this
Section 1.08(d) at a time when an Unrestricted Global Bond has not yet
been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with the Mortgage and this
Supplemental Indenture, the Trustee shall authenticate one or more
Unrestricted Global Bonds in an aggregate principal amount equal to
the principal amount of Definitive Bonds so exchanged or transferred.
(e) Transfer and Exchange of Definitive Bonds for Definitive Bonds.
Upon request by a holder of Definitive Bonds and such holder's compliance with
the provisions of this Section 1.08(e), the Trustee, as registrar, shall
register the transfer or exchange of Definitive Bonds. Prior to such
registration of transfer or exchange, the requesting holder shall present or
surrender to the Trustee, as registrar, the Definitive Bonds duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Trustee, as registrar, duly executed by such holder or by its attorney, duly
authorized in writing. In addition, the requesting holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 1.08(e).
(i) Definitive Bonds to Definitive Bonds. Any Definitive Bond may be
transferred to and registered in the name of persons who take delivery
thereof in the form of a Definitive Bond if the Trustee, as registrar,
receives from the transferor a certificate substantially in the form
of Exhibit A hereto, including the certifications and legal opinions
required therein.
(ii) Definitive Bonds to Unrestricted Definitive Bonds. Any Definitive
Bond may be exchanged by the holder thereof for an Unrestricted
Definitive Bond or transferred to a person or persons who take
delivery thereof in the form of an Unrestricted Definitive Bond if the
Trustee, as registrar, receives the following: (A) if the holder of
such Definitive Bonds proposes to exchange such Definitive Bonds for
an Unrestricted Definitive Bond, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (1)(d) thereof; or (B) if the holder of such
Definitive Bonds proposes to transfer such Definitive Bonds to a
person who shall take delivery thereof in the form of an Unrestricted
Definitive Bond, a certificate from such holder substantially in the
form of Exhibit A hereto, including the certifications in item (4)
thereof; and (except in the case of a transfer contemplated by item
(4)(a) or (d) of Exhibit A), an Opinion of Counsel.
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(iii) Unrestricted Definitive Bonds to Unrestricted Definitive Bonds.
A holder of Unrestricted Definitive Bonds may transfer such
Unrestricted Definitive Bonds to a person who takes delivery thereof
in the form of an Unrestricted Definitive Bond. Upon receipt of a
request to register such a transfer, the Trustee, as registrar, shall
register the Unrestricted Definitive Bonds pursuant to the
instructions from the holder thereof.
(f) Legends. The following legends shall appear on the face of all
Global Bonds and Definitive Bonds issued under this Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Bond and each Definitive Bond (and all Securities issued in
exchange therefor or substitution thereof) shall bear the legend
in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN
A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (4) IN
ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF EACH STATE OF THE
UNITED STATES. IF THE PROPOSED TRANSFER IS PURSUANT
TO CLAUSE (4) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO
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CONFIRM THAT ANY TRANSFER BY IT
OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A.
(B) Notwithstanding the foregoing, any Global Bond or Definitive
Bond issued pursuant to subparagraphs (b)(ii), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii) and (e)(iii) of this Section 1.08 (and
all Bonds of the Medium Term Note Series VI issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Bond Legend. Each Global Bond shall bear a legend in
substantially the following form (unless otherwise specified by the
Depository):
THIS GLOBAL BOND IS HELD BY THE DEPOSITORY (AS
DEFINED IN THE MORTGAGE AND SUPPLEMENTAL INDENTURE
GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 1.08 OF THE SUPPLEMENTAL INDENTURE, (II) THIS
GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 1.08(a) OF THE SUPPLEMENTAL
INDENTURE, (III) THIS GLOBAL BOND MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.06
OF THE MORTGAGE AND (IV) THIS GLOBAL BOND MAY BE
TRANSFERRED 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
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
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PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS MAY BE 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.
(g) Cancellation and/or Adjustment of Global Bonds. At such time as
all beneficial interests in a particular Global Bond have been exchanged for
Definitive Bonds or a particular Global Bond has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Bond shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.06 of the
Mortgage. At any time prior to such cancellation, if any beneficial interest in
a Global Bond is exchanged for or transferred to a person who will take delivery
thereof in the form of a beneficial interest in another Global Bond or for
Definitive Bonds, the principal amount of Bonds of the Medium Term Note Series
VI represented by such Global Bond shall be reduced accordingly and an
endorsement shall be made on such Global Bond by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a person who will
take delivery thereof in the form of a beneficial interest in another Global
Bond, the principal amount of Bonds of the Medium Term Note Series VI
represented by such other Global Bond shall be increased accordingly and an
endorsement shall be made on such Global Bond by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) The Bonds of the Medium Term Note Series VI shall be transferable
only upon the surrender of a Bond of the Medium Term Note Series VI
for registration of transfer and in compliance with this Section 1.08.
When a bond is presented to the Trustee, as registrar, with a request
to register a transfer, the Trustee, as registrar, shall register the
transfer as requested if the requirements of Section 8-401 of the
Uniform Commercial Code and this Section 1.08 are met. When Bonds of
the Medium Term Note Series VI are presented to the Trustee, as
registrar, with a request to exchange them for an equal principal
amount of Global Bonds or Definitive Bonds of other denominations, the
Trustee, as registrar, shall make the exchange as requested if the
same requirements are met.
(ii) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Bonds and
Definitive Bonds upon receipt of an authentication order from the
Company in accordance with the Indenture.
(iii) The Trustee, as registrar, shall retain copies of all
certificates, opinions of counsel, notices and other written
communications received pursuant to this Section 1.08 in accordance
with its customary procedures. The Company shall have the right to
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inspect and make copies of all such certificates, opinions of counsel,
notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Trustee, as registrar.
(iv) All Global Bonds and Definitive Bonds issued upon any
registration of transfer or exchange of Global Bonds or Definitive
Bonds shall be the valid obligations of the Company, evidencing the
same indebtedness, and entitled to the same benefits under the
Indenture, as the Global Bonds or Definitive Bonds surrendered upon
such registration of transfer or exchange.
(v) Prior to due presentment for the registration of a transfer of any
Bond of the Medium Term Note Series VI, the Trustee, any agent and the
Company may deem and treat the person in whose name any Bond of the
Medium Term Note Series VI is registered as the absolute owner for the
purpose of receiving payment of principal of, premium, if any, and
interest, and for all other purposes, and none of the Trustee, any
agent or the Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Bonds and Definitive Bonds
in accordance with the provisions of the Mortgage and this
Supplemental Indenture.
(vii) All certifications, certificates and opinions of counsel
required to be submitted to the Trustee, as registrar, pursuant to
this Section 1.08 to effect a registration of transfer or exchange may
be submitted by facsimile, with an original of such document to be
sent promptly thereafter.
(viii) Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Trustee, as
registrar, pursuant to this Section 1.08, the registrar's duties shall
be limited to confirming that any such certifications and certificates
delivered to it are substantially in the form of Exhibits A and B
attached hereto. The Trustee, as registrar, shall not be responsible
for confirming the truth or accuracy of representations made in any
such certifications or certificates.
SECTION 1.09. CUSIP, ISIN or Common Code Numbers. The Company in
issuing the Bonds of the Medium Term Note Series VI may use "CUSIP," "ISIN" or
"Common Code" numbers (if then generally in use) and, if so, the Trustee shall
use such numbers in notices of redemption or repurchase as a convenience to
holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the bonds or as contained in any notice of a redemption or repurchase and
that reliance may be placed only on the other identification numbers printed on
the bonds, and any such redemption or repurchase shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in "CUSIP," "ISIN" or "Common Code" numbers.
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SECTION 1.10. Duration of Article One. This Article shall be of force
and effect only so long as any Bonds of the Medium Term Note Series VI are
outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. Duties of Trustee.
(a) The Trustee hereby accepts the trust hereby created. The Trustee
undertakes, prior to the occurrence of an event of default and after the curing
of all events of default which may have occurred, to perform such duties and
only such duties as are specifically set forth in the Indenture, on and subject
to the terms and conditions set forth in the Indenture, and in case of the
occurrence of an event of default (which has not been cured) to exercise such of
the rights and powers vested in it by the Indenture, and to use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or
the Bonds of the Medium Term Note Series VI issued hereunder or the due
execution thereof by the Company. The Trustee shall be under no obligation or
duty with respect to the filing, registration or recording of this Supplemental
Indenture or the re-filing, re-registration or re-recording thereof. The
recitals of fact contained herein or in the Bonds of the Medium Term Note Series
VI (other than the Trustee's authentication certificate) shall be taken as the
statements solely of the Company, and the Trustee assumes no responsibility for
the correctness thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Date of this Supplemental Indenture. Although this
Supplemental Indenture, for convenience and for the purpose of reference, is
dated July 1, 2003, the actual date of execution by the Company and by the
Trustee is as indicated by their respective acknowledgments hereto annexed.
SECTION 3.02. Relation to Original Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture as heretofore supplemented and modified, and as supplemented
and modified hereby, the Original Indenture as heretofore supplemented and
modified is in all respects ratified and confirmed, and the Original Indenture
as heretofore and hereby supplemented and modified shall be read, taken and
construed as one and the same instrument. All terms used in this Supplemental
Indenture shall be taken to have the same meaning as in the Original Indenture
except in cases where the context clearly indicates otherwise.
-31-
SECTION 3.03. Invalid, Illegal or Unenforceable Provisions. In case
any one or more of the provisions contained in this Supplemental Indenture or in
the Bonds of the Medium Term Note Series VI shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture, but this Supplemental Indenture shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein.
SECTION 3.04. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts, or as many
of them as the Company and the Trustee shall preserve undestroyed, shall
together constitute but one and the same instrument.
SECTION 3.05. Conflicting Provision. If any provision of this
Supplemental Indenture conflicts with another provision of the Mortgage required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Indenture) by any of the
provisions of said Act, such required provision shall control.
SECTION 3.06. Headings. Article and Section headings and the table of
contents used herein are for convenience of reference only, are not part of this
Supplemental Indenture and are not to affect the construction of, or to be taken
into consideration in interpreting, this Supplemental Indenture.
SECTION 3.07. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO THE CREATION OR ENFORCEMENT OF
ANY LIEN ON REAL PROPERTY CREATED BY THE INDENTURE, WHICH SHALL BE GOVERNED BY
THE LAWS OF THE STATE IN WHICH SUCH REAL PROPERTY IS LOCATED.
IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Executive Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA has caused this Supplemental Indenture to be signed in
its corporate name by one of its Vice Presidents or one of its Assistant Vice
Presidents or one of its Corporate Trust Officers and its corporate seal to be
hereunto affixed and attested by one of its Corporate Trust Officers, all as of
the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President, Finance,
Chief Financial Officer and Treasurer
Attest:
Xxxxxx X. XxXxxxxx
------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Assistant Secretary
(Seal)
HSBC BANK USA, as Trustee
By: Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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State of Oregon )
) ss.
County of Multnomah )
The foregoing instrument was acknowledged before me on this 28th day of July,
2003 by Xxxxx X. Xxxx, Executive Vice President, Finance, Chief Financial
Officer and Treasurer of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, on behalf of said corporation.
Xxxx X. Xxxxxxx
------------------------------------
Notary Public for Oregon
My Commission Expires: 12/28/2004
[NOTARIAL SEAL]
-00-
Xxxxx xx Xxx Xxxx )
) ss.
County of New York )
The foregoing instrument was acknowledged before me on this 29th day of July,
2003 by Xxxxxxx X. Xxxx, a(an) Assistant Vice President of HSBC BANK USA, a New
York banking corporation and trust company, on behalf of said corporation.
Xxxxxx Xxxxxxxxx
-------------------------------------
Notary Public, State of New York
No. 24-01MA4761665
My Commission Expires: 11/30/1996
[NOTARIAL SEAL]
-35-
State of Oregon )
) ss.
County of Multnomah )
Xxxxx X. Xxxx and Xxxxxx X. XxXxxxxx, Executive Vice President, Finance, Chief
Financial Officer and Treasurer and Assistant Secretary, respectively, of
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, the mortgagor in the
foregoing mortgage named, being first duly sworn, on oath depose and say that
they are the officers above named of said corporation and that this affidavit is
made for and on its behalf by authority of its Board of Directors and that the
aforesaid mortgage is made by said mortgagor in good faith, and without any
design to hinder, delay or defraud creditors.
Subscribed and sworn to before me this 28th day of July, 2003.
Xxxx X. Xxxxxxx
------------------------------------
Notary Public for Oregon
My Commission Expires: 12/28/2004
[NOTARIAL SEAL]
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EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
BONDS OF THE MEDIUM TERM NOTE SERIES VI (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fifty-fifth Supplemental Indenture dated as of [_____], 2003 between the Issuer
and the Trustee (the "Supplemental Indenture," and together with the Original
Indenture, the "Indenture"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________ (the "Transferor") owns and proposes to transfer the
Bonds or interests in Bonds specified in Annex A hereto, in the principal amount
of $___________ (the "Transfer"), to __________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest in a Global Bond or a Definitive Bond is being transferred to a person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest in a Global Bond or such Definitive Bond for its own
account, or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any relevant State of the United
States. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Bond will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Global Bonds and/or the Definitive Bonds and in the
Indenture and with the Securities Act.
2. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond pursuant to Regulation S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts (as defined in Rule 902 of Regulation
S) have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration
-37-
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period (as provided
in Rule 904 of Regulation S), the transfer is not being made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an initial purchaser)
and the interest transferred will be held immediately thereafter through
Euroclear or Clearstream. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
in a Global Bond or Definitive Bond will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Global Bonds
and/or the Definitive Bonds and in the Indenture and with the Securities Act.
3. [] Check and complete if Transferee will take delivery of a
beneficial interest in a Global Bond or a Definitive Bond pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in the Global Bonds and the Definitive Bonds
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any relevant State of the United States, and
accordingly the Transferor hereby further undertakes to furnish, or cause the
Transferee to furnish, to the Company and the Trustee such certificates and
other information as they may reasonably require to confirm that the transfer to
the Transferee of the Global Bond or the Definitive Bond complies with the
foregoing restrictions.
Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest in the Global Bond
or Definitive Bond will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Global Bond or the Definitive Bonds
and in the Indenture and the Securities Act.
4. [] Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Bond or of an Unrestricted Definitive Bond.
(a) [] Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any relevant State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest in a Global Bond or Definitive Bond
will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Global Bonds, on the
Definitive Bonds and in the Indenture.
(b) [] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Bond will no longer be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Global Bonds, on the Definitive Bonds
and in the Indenture.
(c) [] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest in a Global Bond or Definitive Bond
will not be subject to the restrictions on transfer enumerated in the
Private Placement
-38-
Legend printed on the Global Bonds or Definitive Bonds and in the
Indenture. This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
______________________
[Insert Name of Transferor]
By:___________________
Name:
Title:
Dated:____________
-39-
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [] a beneficial interest in a Global Bond (CUSIP ______), or
(b) [] a Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [] a beneficial interest in the:
(i) [] Global Bond (CUSIP ______), or
(ii) [] Unrestricted Global Bond (CUSIP ______); or
(b) [] a Definitive Bond; or
(c) [] an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
-40-
EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
BONDS OF THE MEDIUM TERM NOTE SERIES VI (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and Deed of
Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fifty-fifth Supplemental Indenture dated as of [_____], 2003 between the Issuer
and the Trustee (the "Supplemental Indenture," and together with the Original
Indenture, the "Indenture"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Bonds or
beneficial interests in the Bonds specified herein, in the principal amount of
$____________ (the "Exchange"). In connection with the Exchange, the Owner
hereby certifies that:
1. Exchange of Definitive Bonds or Beneficial Interests in a Global Bond
for Unrestricted Definitive Bonds or Beneficial Interests in an Unrestricted
Global Bond
(a) [} Check if Exchange is from beneficial interest in a Global Bond
to beneficial interest in an Unrestricted Global Bond. In connection with the
Exchange of the Owner's beneficial interest in a Global Bond for a beneficial
interest in an Unrestricted Global Bond in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Bonds and pursuant to
and in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Bond is being acquired in compliance with any applicable
blue sky securities laws of any relevant State of the United States.
(b) [] Check if Exchange is from beneficial interest in a Global Bond
to Unrestricted Definitive Bond. In connection with the Exchange of the Owner's
beneficial interest in a Global Bond for an Unrestricted Definitive Bond, the
Owner hereby certifies (i) the Unrestricted Definitive Bond is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Bond is being acquired in compliance with
any applicable blue sky securities laws of any relevant State of the United
States.
(c) [] Check if Exchange is from Definitive Bond to beneficial
interest in an Unrestricted Global Bond. In connection with the Owner's Exchange
of a Definitive Bond for a beneficial interest in an Unrestricted Global Bond,
the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Definitive Bonds and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
relevant State of the United States.
(d) [] Check if Exchange is from Definitive Bond to Unrestricted
Definitive Bond. In connection with the Owner's Exchange of a Definitive Bond
for an Unrestricted Definitive Bond, the Owner hereby certifies (i) the
Unrestricted Definitive Bond is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Definitive Bonds and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Bond is being acquired in compliance with any applicable blue sky securities
laws of any relevant State of the United States.
2. Exchange of Definitive Bonds or Beneficial Interests in Global Bonds for
Definitive Bonds or Beneficial Interests in Global Bonds
(a) [] Check if Exchange is from beneficial interest in a Global Bond
to Definitive Bond. In connection with the Exchange of the Owner's beneficial
interest in a Global Bond for a Definitive Bond with an equal principal amount,
the Owner hereby certifies that the Definitive Bond is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Definitive Bond issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Bond and in the Indenture and the
Securities Act.
(b) [] Check if Exchange is from Definitive Bond to beneficial
interest in a Global Bond. In connection with the Exchange of the Owner's
Definitive Bond for a beneficial interest in a Global Bond (only if the Owner is
a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A or if the Owner is Non-U.S.
person) the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any relevant State of
the United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Global Bond and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________
[Insert Name of Owner]
By:_____________________________________
Name:
Title:
Dated:____________
