EXECUTION COPY
EXHIBIT 4.10
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THIRD SUPPLEMENTAL INDENTURE
INTERNATIONAL TRANSMISSION COMPANY
TO
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
____________________________
Dated as of March 28, 2006
____________________________
Supplementing the First Mortgage and Deed of Trust
Dated as of July 15, 2003
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
Establishing a series of Securities designated
6.125% First Mortgage Bonds, Series C
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............4
Section 101. Definitions..................................................4
ARTICLE TWO TITLE, FORM AND TERMS OF THE SERIES C BONDS........................6
Section 201. Title of the Series C Bonds..................................6
Section 202. Form and Terms of the Series C Bonds.........................6
Section 203. Execution and Authentication.................................7
Section 204. Depositary for Global Securities.............................7
Section 205. Place of Payment.............................................7
Section 206. Legends......................................................7
Section 207. Restrictions on Transfer and Exchange of Series C Bonds......9
Section 208. Book-Entry Provisions for Restricted Global Securities
and Regulation S Global Securities..........................10
Section 209. Special Transfer Provisions.................................11
ARTICLE THREE REDEMPTION......................................................13
ARTICLE FOUR MAINTENANCE AND RENEWAL..........................................14
ARTICLE FIVE REPORTS..........................................................15
ARTICLE SIX NET EARNINGS CERTIFICATE..........................................16
ARTICLE SEVEN LIEN............................................................16
ARTICLE EIGHT MISCELLANEOUS PROVISIONS........................................17
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THIRD SUPPLEMENTAL INDENTURE, dated as of March 28, 2006, between
International Transmission Company, a corporation organized and existing under
the laws of the State of Michigan (herein called the "COMPANY"), having its
principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ and THE
BANK OF NEW YORK TRUST COMPANY, N.A. (as successor to BNY MIDWEST TRUST
COMPANY), a national banking association, as Trustee (herein called the
"TRUSTEE"), the office of the Trustee at which on the date hereof its corporate
trust business is principally administered being ▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
First Mortgage and Deed of Trust dated as of July 15, 2003 (the "ORIGINAL
INDENTURE") providing for the issuance by the Company from time to time of its
bonds, notes and other evidence of indebtedness to be issued in one or more
series (in the Original Indenture and herein called the "SECURITIES") and to
provide security for the payment of the principal of and premium, if any, and
interest, if any, on the Securities; and for the purpose of amending and
supplementing and further confirming the lien of the Indenture;
WHEREAS, the Company has heretofore executed and delivered the following
Supplemental Indentures, each dated as hereinafter set forth:
Instrument Date
---------- ----
First Supplemental Indenture July 15, 2003
Second Supplemental Indenture July 15, 2003
Amendment to Second Supplemental Indenture January 19, 2005
Second Amendment to Second Supplemental Indenture March 24, 2006
WHEREAS, the Original Indenture and the First Supplemental Indenture and
the Second Supplemental Indenture listed in the foregoing paragraph were
recorded in the offices set forth in Exhibit A attached hereto and incorporated
herein by reference;
WHEREAS, there have heretofore been issued under the Indenture Securities
of series and in principal amounts as follows:
Principal
Title Issued Amount
----- ------ ------------
4.45% First Mortgage Bonds, Series A, July 16, 2003 $185,000,000
due July 15, 2013
First Mortgage Bonds, Series B, July 16, 2003 $ 15,000,000
due March 10, 2010
January 4, 2004 $ 10,000,000
January 19, 2005 $ 50,000,000
WHEREAS, in addition to the property described in the Original Indenture,
the Company has acquired certain other property, rights and interests in
property; and
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture and
pursuant to appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Trustee this Third Supplemental
Indenture (the "THIRD SUPPLEMENTAL INDENTURE") to the Original Indenture as
permitted by Sections 2.01, 3.01, 4.01, 4.02 and 14.01 of the Original Indenture
in order to establish the form or terms of, and to provide for the creation and
issuance of, a series of Securities to be designated and in such initial
aggregate principal amount as further set out in Section 202 hereof; and
WHEREAS, all things necessary to make the Securities issued pursuant to
this Third Supplemental Indenture, when executed by the Company and
authenticated and delivered by the Trustee or any Authenticating Agent and
issued upon the terms and subject to the conditions hereinafter and in the
Original Indenture set forth against payment therefor, the valid, binding and
legal obligations of the Company and to make this Third Supplemental Indenture a
valid, binding and legal agreement of the Company, have been done;
GRANTING CLAUSES
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of a series of Securities, and for and in consideration
of the premises and of the covenants contained in the Original Indenture and in
this Third Supplemental Indenture and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, and in order to
secure the payment of the principal of and premium, if any, and interest, if
any, on all Securities from time to time Outstanding and the performance of the
covenants therein and herein contained and to declare the terms and conditions
on which such Securities are secured, the Company hereby grants, bargains,
sells, conveys, assigns, transfers, mortgages, pledges, sets over and confirms
to the Trustee, and grants to the Trustee a security interest in, the following
(subject, however, to the terms and conditions set forth in the Original
Indenture and herein):
GRANTING CLAUSE FIRST
All right, title and interest of the Company, as of the date of the
execution and delivery of the Original Indenture, as originally executed and
delivered, in and to all property, real, personal and mixed, located in the
State of Michigan (other than Excepted Property), including without limitation
all right, title and interest of the Company in and to the following property so
located (other than Excepted Property): (a) all real property owned in fee,
easements and other interests in real property which are specifically described
or referred to in Exhibit A attached to the Original Indenture and Exhibit D
hereto and incorporated by reference herein; (b) all licenses, permits to use
the real property of others, franchises to use public roads, streets and other
public properties, rights of way and other rights or interests relating to the
occupancy or use of real property; (c) all facilities, machinery, equipment and
fixtures for the transmission and distribution of electric energy including, but
not limited to, all plants, air and water pollution control and sewage and solid
waste disposal facilities, switchyards, towers, substations, transformers,
poles, lines, cables, conduits, ducts, conductors, meters, regulators and all
other property used or to be used for any or all of such purposes; (d) all
buildings, offices, warehouses, structures or improvements in addition to those
referred to or otherwise included in clauses (a) and (c) above; (e) all
computers, data processing, data storage, data transmission and/or
telecommunications facilities, equipment and apparatus necessary for the
operation or maintenance of any facilities, machinery, equipment or fixtures
described or referred to in clause (c) above; (f) all of
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the foregoing property in the process of construction; and (g) (except as
expressly excepted in the Original Indenture or herein) all the right, title and
interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection with
any property hereinbefore described;
GRANTING CLAUSE SECOND
Subject to the applicable exceptions permitted by Section 8.09(d), Section
13.03 and Section 13.05 of the Original Indenture, all right, title and interest
of the Company in all property of every kind and description and wheresoever
situate, real, personal and mixed (other than Excepted Property), including the
properties described in Exhibit D hereto, which may have been acquired by the
Company after the date of the Original Indenture or be hereafter acquired, it
being the intention of the Company that all such property acquired by the
Company after the date of the execution and delivery of the Original Indenture,
and any Indentures supplemental thereto, including this Third Supplemental
Indenture, as originally executed and delivered, shall be as fully embraced
within and subjected to the Lien hereof as if such property were owned by the
Company as of the date of the execution and delivery of the Original Indenture,
and any Indentures supplemental thereto, including this Third Supplemental
Indenture, as originally executed and delivered;
GRANTING CLAUSE THIRD
Any Excepted Property, which may, from time to time after the date of the
execution and delivery of this Third Supplemental Indenture, as originally
executed and delivered, by delivery or by an instrument supplemental to this
Third Supplemental Indenture, be subjected to the Lien hereof by the Company,
the Trustee being hereby authorized to receive the same at any time as
additional security hereunder; it being understood that any such subjection to
the Lien hereof of any Excepted Property as additional security may be made
subject to such reservations, limitations or conditions respecting the use and
disposition of such property or the proceeds thereof as shall be set forth in
such instrument; and
GRANTING CLAUSE FOURTH
All tenements, hereditaments, servitudes and appurtenances belonging or in
any wise appertaining to the aforesaid property, with the reversions and
remainders thereof;
EXCEPTED PROPERTY
Expressly excepting and excluding, however, from the Lien of the Indenture
all right, title and interest of the Company in and to all Excepted Property,
whether now owned or hereafter acquired;
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto the
Trustee, its successors in trust and their assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the execution and
delivery of the Original Indenture, as originally executed and delivered, (b) as
to property acquired by the Company after the date of the execution and delivery
of the Original Indenture, as originally executed and delivered, Liens existing
or placed thereon at the time of the acquisition thereof (including, but not
limited to, Purchase Money Liens) and (c) Permitted Liens;
IN TRUST, NEVERTHELESS, for the equal and ratable benefit and security of
the Holders from time to time of all Outstanding Securities without any priority
of any such Security over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest of the Trustee in and
to the Mortgaged Property shall cease, terminate and become void in accordance
with, and subject to the conditions set forth in, Article IX of the Original
Indenture, and if, thereafter, the principal of and premium, if any, and
interest, if any, on the Securities shall have been paid to the Holders thereof,
or shall have been paid to the Company pursuant to Section 6.03 of the Original
Indenture, then and in that case the Original Indenture shall terminate, and,
upon request of the Company, the Trustee shall execute and deliver to the
Company such instruments as the Company shall require to evidence
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such termination; otherwise the Original Indenture, and the estate and rights
hereby granted, shall be and remain in full force and effect; and
THE PARTIES HEREBY COVENANT AND AGREE as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
"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, plus 0.25%.
"AGENT MEMBER" has the meaning given to such term in Section 208(a) hereof.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series C Bonds to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities having a maturity comparable to
the remaining term of such Series C Bonds.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations or
(B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"DEFINITIVE SECURITIES" has the meaning given to such term in Section
202(e) hereof.
"DEPOSITARY" MEANS DTC, together with any Person succeeding thereto by
merger, consolidation or acquisition of all or substantially all of its assets,
including substantially all of its securities payment and transfer operations.
"DISTRIBUTION COMPLIANCE PERIOD" has the meaning given to such term in
Section 202(c) hereof.
"DTC" means The Depository Trust Company, a New York corporation,
having a principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"GLOBAL SECURITIES" has the meaning given to such term in Section
202(c) hereof.
"INDENTURE" means the Original Indenture, as amended and supplemented
by any and all indentures supplemental thereto, including this Third
Supplemental Indenture.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"INITIAL PURCHASER" means Credit Suisse Securities (USA) LLC
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"ISSUE DATE" means March 28, 2006, the date on which the Series C Bonds are
originally issued under this Third Supplemental Indenture.
"NON-U.S. PERSON" has the meaning assigned to such term in Regulation S.
"PERMANENT REGULATION S GLOBAL SECURITY" has the meaning given to such term
in Section 202(c) hereof.
"QIB" means "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"REFERENCE TREASURY DEALER" means Credit Suisse Securities (USA) LLC
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and their respective successors; provided,
however, that if any of the foregoing is not a primary U.S. Government
securities dealer in New York City (a "PRIMARY TREASURY DEALER"), the Company
will appoint another Primary Treasury Dealer as a substitute.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day next preceding such Redemption Date.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S DEFINITIVE SECURITY" has the meaning given to such term in
Section 208(c) hereof.
"REGULATION S GLOBAL SECURITY" has the meaning given to such term in
Section 202(c) hereof.
"REGULATION S SECURITIES" means Series C Bonds offered and sold as part of
their initial distribution to persons outside the United States in accordance
with Regulation S under the Securities Act.
"RESTRICTED DEFINITIVE SECURITIES" means each of the Definitive
Securities that are required to bear the Restricted Legend.
"RESTRICTED GLOBAL SECURITY" has the meaning given to such term in
Section 202(b) hereof.
"RESTRICTED LEGEND" has the meaning given to such term in Section
206(a) hereof.
"RESTRICTED SECURITIES" has the meaning given to such term in Section
206(a) hereof.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A DEFINITIVE SECURITIES" has the meaning given to such term in
Section 208(c) hereof.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SERIES C BONDS" has the meaning given to such term in Section 201
hereof.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company that would
be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the Issue Date.
"TEMPORARY REGULATION S GLOBAL SECURITY" has the meaning given to such
term in Section 202(c) hereof.
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ARTICLE TWO
TITLE, FORM AND TERMS OF THE SERIES C BONDS
Section 201. Title of the Series C Bonds. This Third Supplemental Indenture
hereby creates a series of Securities designated as the "6.125% First Mortgage
Bonds, Series C, due March 31, 2036" of the Company (the "SERIES C BONDS").
Section 202. Form and Terms of the Series C Bonds. For purposes of the
Original Indenture, the Series C Bonds shall constitute a single series of
Securities and may be issued in an unlimited principal aggregate amount,
although the initial issuance of the Series C Bonds shall be in the principal
amount of $100,000,000. In accordance with Sections 2.01 and 3.01 of the
Original Indenture, this Third Supplemental Indenture hereby provides that the
Series C Bonds (x) shall be payable in such amounts and in the manner as set
forth therein (the form of which is substantially as set forth in Exhibit B
attached hereto) and in the Original Indenture at the rates specified in the
Series C Bonds, (y) and shall have the form and such other terms as set forth in
this Third Supplemental Indenture, the Series C Bonds and the Original Indenture
(except to the extent specifically provided for in this Third Supplemental
Indenture or in the Series C Bonds).
(a) The Series C Bonds issued in transactions exempt from registration
under the Securities Act shall be substantially in the form of Exhibit B
attached hereto. The Series C Bonds may have such notations, legends or
endorsements approved as to form by the Company and required, as applicable, by
law, stock exchange or depository rule, agreements to which the Company is
subject and/or usage. The terms of the Series C Bonds set forth in Exhibit B are
herein incorporated by reference and are part of the terms of this Third
Supplemental Indenture.
(b) The Series C Bonds will be offered and sold by the Company pursuant to
the terms of a purchase agreement and will be resold initially only to (i) QIBs
in reliance on Rule 144A and (ii) Non-U.S. Persons in reliance on Regulation S.
Each such purchaser of the Series C Bonds so initially resold will be deemed by
their acceptance of the Series C Bonds to have represented and agreed as
follows: it (A) (i) is a QIB, (ii) is aware that the sale to it is being made in
reliance on Rule 144A and (iii) is acquiring the bonds for its own account or
for the account of a QIB or (B) is not a U.S. person and is purchasing the bonds
in an offshore transaction pursuant to Regulation S.
(c) The Series C Bonds initially resold in reliance on Rule 144A shall be
issued, and will only be available, in the form of one or more Global Securities
substantially in the form of Exhibit B attached hereto with such applicable
legends as are provided for in Section 206 and 208 (each, a "RESTRICTED GLOBAL
SECURITY") duly executed by the Company and duly authenticated by the Trustee as
herein provided. The Restricted Global Security shall be in definitive, fully
registered form without coupons and be registered in the name of the Depositary
or a nominee of the Depositary and deposited with The Bank of New York Trust
Company, N.A., at its corporate trust office, as custodian for the Depositary.
The aggregate principal amount of any Restricted Global Security may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as provided in Section 209 hereof, which adjustments shall be
conclusive as to the aggregate principal amount of any such Global Security.
(d) The Series C Bonds initially resold outside the United States in
reliance on Regulation S shall be issued, and will only be available, initially
in the form of one or more temporary global Securities substantially in the form
of Exhibit B hereto with such applicable legends as are provided for in Sections
206 and 208 (the "TEMPORARY REGULATION S GLOBAL SECURITY") duly executed by the
Company and duly authenticated by the Trustee as herein provided. Except as
herein provided, beneficial ownership interests in the Temporary Regulation S
Global Security shall not be exchangeable for interests in the Restricted Global
Security, the permanent Regulation S Global Securities substantially in the form
of Exhibit B hereto (each, a "PERMANENT REGULATION S GLOBAL SECURITY") duly
executed by the Company and duly authenticated by the Trustee as herein provided
or a Definitive Security prior to the expiration of the Distribution Compliance
period and then only upon certification in accordance with Regulation S under
the Securities Act, in form reasonably satisfactory to the Trustee, to the
effect that beneficial ownership interests in such Temporary Regulation S Global
Security are owned either by Non-U.S. Persons or U.S. Persons who purchased such
interests in a transaction that did not require registration under the
Securities Act. The Temporary Regulation S Global Security and the Permanent
Regulation S Global Security are
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collectively referred to herein as the "REGULATION S GLOBAL SECURITY." The
Regulation S Global Securities shall be in definitive, fully registered form
without coupons and be registered in the name of the Depositary or a nominee of
the Depositary and deposited with The Bank of New York Trust Company, N.A., at
its corporate trust office, as custodian for the Depositary, for credit
initially and during the Distribution Compliance Period to the respective
accounts of beneficial owners of such Series C Bonds (or to such other accounts
as they may direct) at Euroclear S.A./N.V. or Clearstream Banking, Societe
Anonyme. As used herein, the term "DISTRIBUTION COMPLIANCE PERIOD," with respect
to the Regulation S Global Securities offered and sold in reliance on Regulation
S, means the period of 40 consecutive days beginning on and including the later
of (i) the day on which the Series C Bonds are first offered to persons other
than distributors (as defined in Regulation S) in reliance on Regulation S and
(ii) the Issue Date. The aggregate principal amount of any Regulation S Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as provided in Section 209 hereof, which adjustments
shall be conclusive as to the aggregate principal amount of any such Global
Security. The Restricted Global Security and Regulation S Global Security are
sometimes collectively referred to herein as the "GLOBAL SECURITIES."
(e) Series C Bonds issued pursuant to Section 208(c) in exchange for
interests in a Global Security shall be issued substantially in the form of
Exhibit B hereto in definitive, fully registered form without interest coupons,
but shall not bear the legend for Global Securities in Section 208(b) (the
"DEFINITIVE SECURITIES"). Except as provided herein, owners of beneficial
interests in Global Securities shall not be entitled to physical delivery of
Definitive Securities.
Section 203. Execution and Authentication. The Trustee, upon a Company
Order and pursuant to the terms of the Original Indenture and this Third
Supplemental Indenture, shall authenticate and deliver Series C Bonds for
original issue in an initial aggregate principal amount of $100,000,000. Such
Company Order shall specify the amount of the Series C Bonds to be
authenticated, the date on which the original issue of Series C Bonds is to be
authenticated and the aggregate principal amount of Series C Bonds outstanding
on the date of authentication. All of the Series C Bonds issued under the
Indenture shall be treated as a single series for all purposes under the
Indenture, including, without limitation, waivers, amendments, and offers to
purchase.
Section 204. Depositary for Global Securities. The Depositary for the
Series C Bonds initially shall be DTC.
Section 205. Place of Payment. The Place of Payment in respect of the
Series C Bonds will be at the principal office or agency of the Company in The
City of New York, State of New York or at the office or agency of the Trustee in
The City of New York, State of New York which, at the date hereof, is located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 206. Legends.
(a) All Series C Bonds issued pursuant to this Third Supplemental
Indenture shall be "RESTRICTED SECURITIES" and shall bear a legend to the
following effect (the "RESTRICTED LEGEND") except as permitted by the following
paragraph (b) or (c), as appropriate:
"THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I)
IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN
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AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (IV) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS) OR
(V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
Each Restricted Definitive Security shall bear the following legend on the
face thereof:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
Each Temporary Regulation S Global Security shall bear the following legend
on the face thereof:
"EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN
INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(B)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED
THROUGH EUROCLEAR S.A./N.V. OR CLEARSTREAM BANKING, SOCIETE ANONYME AND ONLY (1)
TO THE COMPANY, (2) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (3) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (1) THROUGH (4) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER
JURISDICTIONS. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATIONS S GLOBAL
SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE
EXCHANGED FOR INTERESTS IN A RESTRICTED GLOBAL SECURITY ONLY IF (1) SUCH
EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE
WITH RULE 144A, AND (2) THE TRANSFEROR OF THE TEMPORARY REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
(B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
8
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY MAY BE TRANSFERRED TO
A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S
GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR
TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST
TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR S.A./N.V. OR
CLEARSTREAM BANKING, SOCIETE ANONYME."
(b) Upon any sale or transfer of a Restricted Security pursuant to
Rule 144 under the Securities Act, the Depositary shall, subject to approval by
the Company and the provisions of Section 3.05 of the Original Indenture, permit
the Holder thereof to request the issuance of a Series C Bond that does not bear
one or more of the legends set forth above and rescind any restrictions on the
transfer of such Restricted Security, if the sale or exchange was made in
reliance on Rule 144 and the Holder certifies to that effect in writing to the
Depositary.
(c) Upon a sale or transfer after the expiration of the Distribution
Compliance Period of any Series C Bonds acquired pursuant to Regulation S, all
requirements that such Series C Bonds bear the Restricted Legend shall cease to
apply (but requirements requiring such Series C Bonds to be in global form and
bear the global legend in Section 208 shall continue to apply).
Section 207. Restrictions on Transfer and Exchange of Series C Bonds. All
Series C Bonds issued upon any registration of transfer or exchange of Series C
Bonds shall be valid obligations of the Company, evidencing the same interest
therein, and entitled to the same benefits under the Original Indenture and this
Third Supplemental Indenture, as the Series C Bonds surrendered upon such
registration of transfer or exchange.
A Holder may transfer a Series C Bond, or request that a Series C Bond be
exchanged for Series C Bonds in authorized denominations and in an aggregate
principal amount equal to the principal amount of such Series C Bond surrendered
for exchange of other authorized denominations, by surrender of such Series C
Bonds to the Trustee with the form of transfer notice thereon duly completed and
executed, and otherwise complying with the terms of the Original Indenture and
this Third Supplemental Indenture, including providing evidence of compliance
with any restrictions on transfer, in form satisfactory to the Company, the
Trustee and the Security Registrar. No such transfer shall be effected until,
and such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Security Registrar in the
Security Register. Prior to the registration of any transfer of a Series C Bond
by a Holder as provided herein, the Company, the Security Registrar, the Paying
Agent and the Trustee shall deem and treat the person in whose name the Series C
Bond is registered on the Security Register as the absolute owner and holder
thereof for the purpose of receiving payment of all amounts payable with respect
to such Series C Bond and for all other purposes, and none of the Company, the
Security Registrar, the Paying Agent or the Trustee shall be affected by any
notice to the contrary. Furthermore, the Depositary shall, by acceptance of a
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Depositary (or its agent) and that ownership of a beneficial interest in the
Global Security shall be required to be reflected in a book-entry. When Series C
Bonds are presented to the Security Registrar with a request to register the
transfer thereof or to exchange them for other authorized denominations of a
Series C Bond in a principal amount equal to the aggregate principal amount of
Series C Bonds surrendered for exchange, the Security Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met.
To permit registrations of transfers and exchanges in accordance with the
terms, conditions and restrictions hereof, the Company shall execute, and the
Trustee shall authenticate, Series C Bonds at the Security Registrar's request.
No service charge shall be made to a Holder for any registration of transfer or
exchange of Series C Bonds, but the Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Series C Bonds. All Series C Bonds
surrendered for registration of transfer or exchange shall be cancelled by the
Trustee in accordance with its then customary procedures.
9
Section 208. Book-Entry Provisions for Restricted Global Securities and
Regulation S Global Securities.
(a) Members of, or participants in, DTC ("AGENT MEMBERS") shall have no
rights under the Original Indenture, this Third Supplemental Indenture and the
Series C Bonds with respect to any Global Security held on their behalf by DTC,
or The Bank of New York Trust Company, N.A., as its custodian, and DTC may be
treated by the Company, the Trustee and any agent of the Trustee as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Global Security. Upon the issuance of any Global
Security, the Security Registrar or its duly appointed agent shall record DTC as
the registered holder of such Global Security.
Transfers of any Global Security shall be limited to transfers of such
Restricted Global Security or Regulation S Global Security in whole, but not in
part, to the Depositary. Each Global Security shall bear the following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO NOMINEES OF
THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."
Beneficial interests in the Restricted Global Security and any Regulation S
Global Security may be transferred in accordance with the rules and procedures
of DTC and the provisions of Section 209.
(c) Beneficial interests in a Restricted Global Security or a Regulation S
Global Security shall be delivered to all beneficial owners thereof in the form
of Rule 144A Definitive Securities ("RULE 144A DEFINITIVE SECURITIES") or
Regulation S Definitive Securities ("REGULATION S DEFINITIVE SECURITIES"), as
the case may be, if (i) DTC notifies the Trustee that it is unwilling or unable
to continue as Depositary for such Restricted Global Security or Regulation S
Global Security, as the case may be, and a successor depositary is not appointed
by the Trustee within 90 days of such notice, and (ii) after the occurrence and
during the continuance of an Event of Default, owners of beneficial interests in
a Global Security with a principal amount aggregating not less than a majority
of the outstanding principal amount of the Global Security advise the Trustee,
the Company and DTC through Agent Members in writing that the continuation of a
book-entry system through DTC or its successor is no longer in their best
interests.
(d) Any beneficial interest in one of the Global Securities that is
transferred to a Person who takes delivery in the form of an interest in another
Global Security will, upon such transfer, cease to be an interest in such Global
Security and become an interest in the other Global Security and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Security for
as long as it remains such an interest.
(e) In connection with the transfer of an entire Restricted Global Security
or an entire Regulation S Global Security to the beneficial owners thereof
pursuant to paragraph (c) of this Section 208, such Restricted Global Security
or Regulation S Global Security, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate, to each beneficial owner
10
identified by DTC in exchange for its beneficial interest in such Restricted
Global Security or Regulation S Global Security, as the case may be, an equal
aggregate principal amount of Rule 144A Definitive Securities or Regulation S
Definitive Securities, as the case may be, of authorized denominations. None of
the Company, the Security Registrar, the Paying Agent or the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such registration instructions. Upon
the issuance of Rule 144A Definitive Securities or Regulation S Definitive
Securities, as the case may be, the Company and the Trustee shall recognize the
Person in whose name the Rule 144A Definitive Securities or Regulation S
Definitive Securities, as the case may be, are registered in the Security
Register as Holders hereunder.
(f) Any Rule 144A Definitive Securities or Regulation S Definitive
Securities, as the case may be, delivered in exchange for an interest in the
Restricted Global Security pursuant to paragraph (c) of this Section 208 shall,
except as otherwise provided by paragraph (d) of Section 209, bear the
Restricted Legend.
(g) Prior to the expiration of the Distribution Compliance Period, any
Regulation S Definitive Security delivered in exchange for an interest in a
Regulation S Global Security pursuant to paragraph (c) of this Section 208 shall
bear the Restricted Legend.
(h) The registered holder of any Restricted Global Security or
Regulation S Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under the
Original Indenture or this Third Supplemental Indenture or the Series C Bonds.
(i) Neither the Company nor the Trustee shall be liable if the Trustee or
the Company is unable to locate a qualified successor clearing agency.
Section 209. Special Transfer Provisions. The following provisions shall
also apply to the Series C Bonds:
(a) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a Series C Bond required to bear
the Restricted Legend to a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box provided
for on the form of Series C Bond stating, or has otherwise advised the Company,
the Trustee and the Security Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Series C Bond stating, or has
otherwise advised the Company, the Trustee and the Security Registrar in
writing, that it is purchasing the Series C Bond for its own account or an
account with respect to which it exercises sole investment discretion and that
it, or the Person on whose behalf it is acting with respect to any such account,
is a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Security Registrar of the documents required
by clause (i) above and instructions given in accordance with DTC's and the
Security Registrar's procedures therefor, the Security Registrar shall reflect
on its books and records the date of such transfer and an increase in the
principal amount of a Restricted Global Security in an amount equal to the
principal amount of the interests in such Regulation S Global Security being
transferred, and the Trustee shall decrease the amount of such Regulation S
Global Security so transferred.
(b) Transfers of Interests in the Temporary Regulation S Global Security,
the Permanent Regulation S Global Security or the Regulation S Definitive
Securities.
(i) After the expiration of the Distribution Compliance Period, the
Security Registrar shall register any transfer of interests in any Regulation S
Global Security or Regulation S Definitive Security without requiring any
additional certification.
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(ii) Until the expiration of the Distribution Compliance Period,
interests in the Temporary Regulation S Global Security may only be sold,
pledged or transferred through Euroclear S.A./N.V. ("EUROCLEAR") or Clearstream
Banking, Societe Anonyme ("CLEARSTREAM") (as indirect participants in the
Depositary) or Agent Members acting for and on behalf of Euroclear and
Clearstream only (x) for interests in a Permanent Regulation S Global Security
and then only upon certification in form reasonably satisfactory to the Trustee
that interests in such Temporary Regulation S Global Security are owned by
either Non-U.S. Persons or U.S. Persons who purchased such interests in a
transaction that did not require registration under the Securities Act or (y)
for interests in the Restricted Global Security if the transferor first delivers
to the Trustee a written transfer notice to the effect that the Series C Bonds
are being transferred to a person (A) who the transferor reasonably believes to
be a QIB; (B) purchasing for its own account or the account of a QIB in a
transaction meeting the requirements of Rule 144A; and (C) in accordance with
all applicable securities laws of the states of the United States and other
jurisdictions.
(c) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any registration of any transfer of a Series C Bond
to a Non-U.S. Person:
(i) Prior to the expiration of the Distribution Compliance Period,
the Security Registrar shall register any proposed transfer of a Series C Bond
to a Non-U.S. Person upon receipt of a certificate substantially in the form set
forth as Exhibit C hereto from the proposed transferor.
(ii) After the expiration of the Distribution Compliance Period, the
Security Registrar shall register any proposed transfer to any Non-U.S. Person
upon receipt of a certificate substantially in the form of Exhibit C from the
proposed transferor. The Security Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Security Registrar of (x) the documents, if
any, required by clause (ii) and (y) instructions in accordance with DTC's and
the Security Registrar's procedures, the Security Registrar shall reflect on its
books and records the date of such transfer and a decrease in the principal
amount of such Restricted Global Security in an amount equal to the principal
amount of the beneficial interest in such Restricted Global Security to be
transferred, and, upon receipt by the Security Registrar of instructions given
in accordance with DTC's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Regulation S Global Security in an amount equal to the
principal amount of the Restricted Global Security to be transferred, and the
Trustee shall decrease the amount of such Restricted Global Security.
(d) Restricted Legend. Upon the transfer, exchange or replacement of Series
C Bonds not bearing the Restricted Legend, the Security Registrar shall deliver
Series C Bonds that do not bear the Restricted Legend. Upon the transfer,
exchange or replacement of Series C Bonds bearing the Restricted Legend, the
Security Registrar shall deliver only Series C Bonds that bear the Restricted
Legend unless there is delivered to the Security Registrar an opinion of counsel
to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(e) General. By acceptance of any Series C Bond bearing the Restricted
Legend, each Holder of such Series C Bond acknowledges the restrictions on
transfer of such Series C Bond set forth in such Restricted Legend and otherwise
in this Third Supplemental Indenture and agrees that it will transfer such
Series C Bond only as provided in such Restricted Legend and otherwise in this
Third Supplemental Indenture. In connection with any transfer of Series C Bonds,
each Holder agrees by its acceptance of the Series C Bonds to furnish the
Security Registrar or the Trustee such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act and in
accordance with the terms and provisions of this Article Two; provided that the
Security Registrar shall not be required to determine the sufficiency of any
such certifications, legal opinions or other information.
Until such time as no Series C Bonds remain Outstanding, the Security
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 208 or this Section 209. The
Trustee, if not the Security Registrar at such time, shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
12
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Third Supplemental Indenture or under applicable law with respect to any
transfer of any interest in any Series C Bonds (including any transfers between
or among Agent Members or beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when required by the
terms of, this Third Supplemental Indenture, and to examine the same to
determine substantial compliance as to form with the requirements hereof.
In the event that any Global Security or any portion thereof is exchanged
for Definitive Securities, such other Definitive Securities may be exchanged (by
transfer or otherwise) for Definitive Securities or for beneficial interests in
a Global Security (if any is then outstanding) only in accordance with
procedures substantially consistent with this Article Two (including any
certification requirements) and applicable procedures adopted by the Company and
the Trustee.
Until definitive Series C Bonds are ready for delivery, the Company may use
temporary Series C Bonds. Temporary Series C Bonds shall be substantially in the
form of definitive Series C Bonds but may have variations that the Company
considers appropriate for temporary Series C Bonds. Without unreasonable delay,
the Company shall deliver definitive Series C Bonds in exchange for temporary
Series C Bonds.
The Company may issue some or all of the Securities in temporary or
permanent global form. The Company may issue a Global Security only to the
Depositary. The Depositary may transfer a Global Security only to its nominee or
to a successor Depositary. A Global Security shall represent the amount of
Series C Bonds specified in the Global Security. A Global Security may have
variations that the Depositary requires or that the Company considers
appropriate for such a security.
Beneficial owners of part or all of a Global Security are subject to the
rules of the Depository as in effect from time to time.
The Company, the Trustee and their agents shall not be responsible for any
acts or omissions of a Depositary, for any Depositary records of beneficial
ownership interests or for any transactions between or among the Depositary,
Agent Members and beneficial owners.
The Company at any time may deliver Series C Bonds to the Trustee for
cancellation. The Paying Agent, if not the Trustee, shall forward to the Trustee
any Series C Bonds surrendered to them for payment or conversion. The Trustee
shall cancel all Series C Bonds surrendered for registration of transfer,
exchange, payment or cancellation and shall dispose of cancelled Series C Bonds
according to its then customary practices. The Company may not issue new Series
C Bonds to replace Series C Bonds that it has paid or which have been delivered
to the Trustee for cancellation.
ARTICLE THREE
REDEMPTION
The Series C Bonds may be redeemed, in accordance with the procedures set
forth in the Original Indenture, on not less than 30 nor more than 60 days'
notice prior to the Redemption Date to the Holders, given as provided in the
Original Indenture, as a whole or in part, at any time at the option of the
Company, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Series C Bonds being redeemed and (ii) as determined by an
Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (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, in each case,
accrued and unpaid interest thereon to, but excluding, the Redemption Date;
provided, however, that installments of interest on the Series C Bonds that are
due and payable on an interest payment date falling on or prior to the relevant
Redemption Date will be payable to the Holders of such Series C Bonds registered
as such at the close of business on the relevant record date according to the
terms and provisions of the Original Indenture.
13
In the event of a partial redemption of the Series C Bonds, the Company
will issue new Series C Bonds for the unredeemed portion in the name of each
Holder of the partially redeemed Series C Bonds.
If less than all of the Series C Bonds are to be redeemed, the Series C
Bonds will be redeemed by lot, pro rata by the Trustee or by such method of
selection as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of Series C Bonds and portions of
Series C Bonds in amounts of $1,000 or any integral multiples of $1,000 in
excess thereof.
Unless the Company defaults in payment of the Redemption Price, the portion
of Series C Bonds called for redemption will no longer accrue interest on and
after the Redemption Date.
ARTICLE FOUR
MAINTENANCE AND RENEWAL
(a) The Company covenants and agrees that, so long as any of the Series C
Bonds are Outstanding, the Company will expend during each calendar year, and
certify to the Trustee in an Officer's Certificate, an amount not less than
2.00% of the average amount of depreciable property of the Company at the
beginning and at the end of such calendar year for one or more of the following
purposes:
(i) capital expenditures for the maintenance and repair of the
utility properties of the Company subject to the Lien of the Original Indenture;
(ii) the construction or acquisition of Property Additions on which
the Original Indenture is a first Lien, subject only to Permitted Liens and
Prepaid Liens; or
(iii) the retirement, through purchase, payment or redemption, of
Securities issued under and secured by the Indenture (including any future
supplemental indenture pursuant to the Original Indenture).
(b) The term "amount of depreciable property" shall mean as of any date
the amount of Property Additions included at such date on the books of the
Company which is depreciable, as determined in accordance with generally
accepted accounting principles in the United States. The average of the amount
of depreciable property shall mean the arithmetical average of the amount of
depreciable property at the beginning, and the amount thereof at the end, of
such calendar year. Partial years shall be prorated.
If, in any calendar year, the required expenditures for the foregoing
purposes are not made, the Company shall deposit with the Trustee on or before
the first day of February next succeeding the close of such calendar year a sum
in cash to the extent of any deficiency, after deducting (subject to the terms
of the Indenture) any eligible credit for unused excess expenditures previously
made for such purposes. Such cash may be applied to the redemption at the
applicable Redemption Price, or to the repurchase, of Securities, or may be
withdrawn to the extent of 100% of Property Additions.
(c) Excess expenditures in any calendar year may be used to comply with
the requirements of any subsequent year or years and Property Additions may be
certified to comply with the provisions of clause (b) above; provided, that
Property Additions so used, and Securities retired through expenditures so used,
cannot be used for other purposes under this Third Supplemental Indenture;
provided, further that, (i) no Retired Securities or expenditures for Funded
Property which shall have been made the basis for authentication of Securities
or the release of Mortgaged Property or the withdrawal of deposited cash or
Securities or any other amounts under any other provision of the Indenture, or
which shall have been made out of any insurance moneys or moneys received from
the condemnation, sale or other disposition of any of the Company's property
subject to the Lien of the Indenture, or which shall have previously been used
or applied or certified to the Trustee to comply with this Article Four or any
other provision of the Indenture and (ii) no retirement of Securities which
shall have been made with moneys applied to such purpose pursuant to any
provision of this Article Four or of Section 4.04 or 8.06 of the Original
Indenture, shall be certified or used or applied for the purpose of complying
with this Article or
14
withdrawing any moneys paid to the Trustee pursuant to this Article Four. This
Article Four shall not require the annual retirement by the Company of any
specific amount of Outstanding Securities.
(d) So long as any of the Series C Bonds are Outstanding, on or before the
first day of February of each year beginning February 1, 2007, the Company shall
deliver to the Trustee an Officer's Certificate showing in reasonable detail:
(1) the Company's expenditures pursuant to each of subclauses (a)(i), (a)(ii)
and (a)(iii) above, or otherwise deposited with the Trustee pursuant to this
Article Four; (2) any eligible credit for excess expenditures from prior periods
and the extent to which the Company elects to have such excess applied to the
period next preceding delivery of such Officer's Certificate; and (3) the amount
of cash the Company is depositing with the Trustee concurrently with the
delivery of such Officer's Certificate to comply with the requirements of this
Article Four. Such Officer's Certificate shall also state that it complies with
the requirements of this Article Four.
(e) At the option of the Company, any moneys paid to and held by the
Trustee under the provisions of subclause (b) of this Section shall, upon the
written request of the Company pursuant to an Officer's Certificate, (1) be
applied by the Trustee to the purchase in the open market of Securities of any
series, at not exceeding the then applicable Redemption Price, if any, at which
Securities of said series may then be redeemed or (2) be paid to or upon the
order of the Company to the extent of (i) the principal amount of Securities of
said series purchased or paid by the Company and delivered to the Trustee,
cancelled or for cancellation and (ii) the accrued interest and the premium, if
any, theretofore paid to the Trustee, as hereinabove provided, on such principal
amount of Securities. The Company hereby covenants and agrees that it will pay
to the Trustee from time to time in cash such additional sums, if any, as shall
be paid or required to be paid by the Trustee as or for accrued interest and
premium, if any, in respect of any Securities purchased or redeemed pursuant to
the provisions of this Section.
(f) Any and all Securities, the retirement (through payment or purchase)
of which shall be certified to the Trustee in compliance with the provisions of
this Article Four, shall be delivered to the Trustee at or before the time the
same shall be so certified and shall thereupon be cancelled and destroyed by the
Trustee, unless theretofore cancelled and destroyed. All other Securities
received by the Trustee pursuant to any provision of this Article Four shall
thereupon be cancelled and destroyed by the Trustee.
ARTICLE FIVE
REPORTS
In addition to the reports the Company must provide pursuant to the
Original Indenture, the Company hereby covenants and agrees that:
(a) whether or not required by the Commission, so long as any Series C
Bonds are outstanding, the Company shall mail to the Trustee and the Holders,
within the time periods specified in the Commission's rules and regulations all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission 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" and, with respect to
the annual information only, a report on the annual financial statements by the
Company's certified independent accountants;
(b) whether or not required by the Commission, so long as any Series C
Bonds are outstanding, the Company shall mail to the Trustee and the Holders,
within five calendar days of the occurrence thereof, an Officers' Certificate
providing notice of any of the following events, including in reasonable detail
a summary of such event or events and the Company's plans in respect thereof, if
any:
(1) any change of control of the Company, including the name of the
Person(s) acquiring control, the amount and source of the consideration used,
the basis of the control, the date and description of the transaction resulting
in the change of control, the percentage of beneficial ownership of voting
securities of the Company owned by the Person gaining control, the identity of
the Person from whom control was assumed and the effect of such change of
control, if any, on any material agreements or arrangements of the Company;
15
(2) any acquisition or disposition of any significant assets of the
Company or any of its Subsidiaries, whether in one transaction or a series of
related transactions;
(3) any bankruptcy or receivership of the Company or any direct or
indirect parent of the Company;
(4) any change in the Company's or any of its Significant Subsidiaries'
auditors;
(5) any resignation of any director of the Company;
(6) any change in the fiscal year of the Company; and
(7) information with respect to the Company's results of operations,
financial condition or prospects which, in the reasonable judgment of the
Company, would be material to a Holder;
provided, that at such time as the Company is required to file reports on
Form 8-K, the Company shall mail to the Trustee and the Holders, within the time
periods specified in the Commission's rules and regulations the information
required in current reports on Form 8-K that are required to be filed with the
Commission in lieu of the information preceding this proviso of this clause (b);
(c) following the filing of any information with the Commission, the
Company shall make such information available to prospective investors in any
Series C Bonds upon their request; and
(d) furnish to the Holders and to prospective investors in the Series C
Bonds, upon the request of such Holders, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the
Series C Bonds are not freely transferable under the Securities Act.
At the request of the Company, the Trustee shall assist the Company in the
mailing to Holders of any of the aforesaid information, reports and certificates
pursuant to clauses (a), (b) and/or (c) above. If the Trustee delivers the
foregoing information to the Holders on behalf of the Company, the Company shall
not be required to deliver such information. Should the Company deliver to the
Trustee any such information, reports or certificates or any annual reports,
information, documents and other reports pursuant to Section 314(a) of the Trust
Indenture Act (if this Third Supplemental Indenture shall become qualified and
subject to the Trust Indenture Act), delivery of such information, reports and
certificates, or such annual reports, information, documents and other reports
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute notice or constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer's Certificates).
ARTICLE SIX
NET EARNINGS CERTIFICATE
Notwithstanding Section 1.04 or any other provision of the Original
Indenture, the Net Earnings Certificate delivered in connection with the initial
issuance of Series C Bonds on the Issue Date shall be made and signed by an
Accountant if it is not signed by an independent public accountant.
ARTICLE SEVEN
LIEN
The Series C Bonds are entitled to the benefit of the Lien under the
Indenture, including, without limitation, the Lien on the property referred to
in Exhibit A to the Original Indenture.
16
ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Third Supplemental Indenture, the Series C Bonds
or the proper authorization or the due execution hereof by the Company or for or
in respect of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Company. The Trustee shall not be
accountable for the use or the application by the Company of the Series C Bonds
or of the proceeds thereof.
Except as expressly amended and supplemented hereby, the Original Indenture
shall continue in full force and effect in accordance with the provisions
thereof and the Original Indenture is in all respects hereby ratified and
confirmed. This Third Supplemental Indenture and all of its provisions shall be
deemed a part of the Original Indenture in the manner and to the extent herein
and therein provided.
This Third Supplemental Indenture and the Series C Bonds shall be governed
by and construed in accordance with the law of the State of New York, except
that (i) if this Third Supplemental Indenture shall become qualified and shall
become subject to the Trust Indenture Act, this Third Supplemental Indenture and
the Series C Bonds shall be governed by the Trust Indenture Act to the extent
that the Trust Indenture Act shall be applicable and (ii) if the law of any
jurisdiction wherein any portion of the Mortgaged Property is located shall
mandatorily govern the creation of a mortgage lien on and security interest in,
or perfection, priority or enforcement of the Lien of the Indenture or exercise
of remedies with respect to, such portion of the Mortgaged Property, this Third
Supplemental Indenture and the Series C Bonds shall be governed by the law of
such jurisdiction to the extent mandatory.
This Third Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed as of the day and year first above written.
INTERNATIONAL TRANSMISSION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
General Counsel
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
STATE OF MICHIGAN )
) ss.:_____________
COUNTY OF Oakland )
On this 23rd day of March 2006, before me personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known to be Vice President and General Counsel of INTERNATIONAL
TRANSMISSION COMPANY, one of the corporations that executed the within and
foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said Corporation, for the uses and purposes therein
mentioned, and on oath stated that he was authorized to execute said instrument
and that the seal affixed, if any, is the corporate seal of said Corporation.
On the 23rd day of March in the year 2006 before me personally came ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he
resides at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; that he is Vice President and
General Counsel of INTERNATIONAL TRANSMISSION COMPANY, the corporation described
in and which executed the above instrument; and that he signed his name thereto
by authority of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
Oakland, County, Michigan
My Commission expires: 10/21/2010
Acting in the County of: Oakland
STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On the 20th day of March in the year 2006 before me, the undersigned,
personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant Vice President of The Bank of
New York Trust Company, N.A., personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that she executed the same in her
capacity, and that by her signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed the instrument.
/s/ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Print Name:
Notary Public in and for the State of Illinois
Commission expires: 7/8/08
Drafted by:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
When recorded return to:
The Bank of New York Trust Company
▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A
The recording information for the Original Indenture, the First
Supplemental Indenture and the Second Supplemental Indenture, each recorded in
the Offices of the Register of Deeds in the Michigan Counties as indicated, is
as follows:
County Original Indenture First Supp Second Supp
---------- ------------------ ------------- -------------
Huron L991; P520 L992; P26 L993; P26
Lapeer L1751; P1 L1752; P1 L1754; P1
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; P332 L4027; P2 L4033; P2
Macomb L13839; P1 L13840; P1 L13850; P1
Monroe L2520; P681 L2521; P1 L2524; ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇; P1 L30355; P1 L30356; P1
Sanilac L774; P152 L775; P424 L777; ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇; P627 L2847; P753 L2903; P236
Tuscola L942; P378 L943; P1 L944; P124
Washtenaw L4284; P485 L4284; P486 L4285; P136
▇▇▇▇▇ L38882; P1 L38882; P1324 L38882; P1991
L38882; P149 L38882; P1377 L38882; P2031
L38882; P289 L38882; P1433 L38882; P2066
L38882; P439 L38882; P1492 L38882; P2104
L38882; P584 L38882; P1549 L38882; P2145
L38882; P733 L38882; P1604 L38882; P2181
L38882; P880 L38882; P1661 L38882; P2220
L38882; P1028 L38882; P1714 L38882; P2255
L38882; P1175 L38882; P1771 L38882; P2294
L38877; P102 L38882; P1826 L38882; P2330
L38877; P247 L38882; P1882 L38882; P2368
L38877; P395 L38882; P1933 L38882; P2403
A-1
EXHIBIT B
[FORM OF FACE OF SERIES C BONDS]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO NOMINEES OF
THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.]*
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I)
IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (IV) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF
THE COMPANY SO REQUESTS) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]**
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.]***
____________
* To be included on the face of each Global Security.
** To be included on the face of each Restricted Global Security and
Restricted Definitive Security.
*** To be included on the face of each Restricted Definitive Security.
B-1
[EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN
INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(B)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED
THROUGH EUROCLEAR S.A./N.V. OR CLEARSTREAM BANKING, SOCIETE ANONYME AND ONLY (1)
TO THE COMPANY, (2) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (3) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (1) THROUGH (4) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER
JURISDICTIONS. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATIONS S GLOBAL
SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE
EXCHANGED FOR INTERESTS IN A RESTRICTED GLOBAL SECURITY ONLY IF (1) SUCH
EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE
WITH RULE 144A, AND (2) THE TRANSFEROR OF THE TEMPORARY REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
(B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY MAY BE TRANSFERRED TO
A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S
GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR
TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST
TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR S.A./N.V. OR
CLEARSTREAM BANKING, SOCIETE ANONYME.]****
____________
**** To be included on the face of each Temporary Regulation S Global Security.
B-2
INTERNATIONAL TRANSMISSION COMPANY
6.125% FIRST MORTGAGE BONDS, SERIES C DUE MARCH 31, 2036
$_______________
No.C__________ CUSIP _______________
ISIN _______________
INTERNATIONAL TRANSMISSION COMPANY, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the "COMPANY,"
which term includes any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of $________________ on March 31, 2036 and to pay
interest thereon from March __, 2006, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on March 31 and September 30 in each year, commencing September 30,
2006, at the rate per annum provided in the title hereof, until the principal
hereof is paid or made available for payment, and, subject to the terms of the
Indenture hereinafter referenced, at the rate of 6.125% per annum on any overdue
principal and premium and (to the extent that the payment of such interest shall
be legally enforceable) on any overdue installment of interest, from the dates
such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Series C Bond is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may be paid to the
Person in whose name this Series C Bond is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given as provided in the Indenture.
Interest will be computed on the basis of a 360-day year of 30-day months.
Payment of the principal of (and premium, if any) and interest on the
Series C Bonds will be made at the office or agency of the Company maintained
for that purpose in the City of New York, State of New York or at the office or
place of business of the Trustee or its successor in trust under the Original
Indenture hereinafter referenced, in such coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts; [if this Security is not a Global Security, insert --
provided, however, that at the option of the Company payments of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register] [if this Security is a Global
Security, insert--provided, however, that except with respect to payments of
principal, payments shall be made by wire transfer of immediately available
funds with respect to payments in respect of Global Securities if the Holders
thereof have provided wire instructions in respect of such payments to the
Company or the Paying Agent]. Holders must surrender Series C Bonds to a Paying
Agent to collect principal payments.
Reference is hereby made to the further provisions of the Series C Bonds
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture (hereinafter referenced),
this Series C Bond shall not be entitled to any benefits under the Indenture
(hereinafter referenced), or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, INTERNATIONAL TRANSMISSION COMPANY has caused this
Series C Bond to be duly executed.
Dated: INTERNATIONAL TRANSMISSION COMPANY
BY ______________________________
Name:
Title:
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series C Bonds of the series designated therein referred
to in the within-mentioned Indenture.
Date: THE BANK OF NEW YORK TRUST COMPANY, N.A,
as Trustee,
BY: ______________________________
Authorized Signatory
B-4
[FORM OF REVERSE OF SERIES C BOND]
This 6.125% First Mortgage Bond, Series C is one of the duly authorized
issue of bonds, notes or other evidences of indebtedness of the Company (herein
sometimes referred to as the "SERIES C BONDS"), of the series hereinafter
specified, all issued or to be issued under and pursuant to the Original
Indenture dated as of July 15, 2003, as supplemented by the Third Supplemental
Indenture, dated as of March 28, 2006 (as so supplemented, the "INDENTURE"),
duly executed and delivered by the Company and The Bank of New York Trust
Company, N.A., as Trustee (herein called the "TRUSTEE," which term includes any
successor trustee under the Indenture), to which Indenture and any other
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, obligations, duties and immunities thereunder of the Trustee
and any agent of the Trustee, any Paying Agent, the Company and the Holders of
the Series C Bonds and of the terms upon which the Series C Bonds are issued and
are to be authenticated and delivered. This Security is one of the series
designated on the face hereof, which series is initially limited in aggregate
principal amount to $100,000,000; provided that the Company may from time to
time or at any time, without the consent of the Holders of the Series C Bonds,
issue additional Securities, including additional Series C Bonds, which
additional Series C Bonds shall, if issued, increase the aggregate principal
amount of, and shall be consolidated and form a single series with, the Series C
Bonds issued on the Issue Date. By the terms of the Indenture, additional
Securities of other separate series, which may vary as to date, aggregate
principal amount, Stated Maturity, interest rate or method of calculating the
interest rate, redemption provisions and in other respects as therein provided,
may be issued in an unlimited amount.
Series C Bonds may be redeemed in accordance with the procedures set forth
in the Original Indenture on not less than 30 nor more than 60 days' notice
prior to the Redemption Date thereof to the Holder thereof, given as provided in
the Indenture, as a whole or in part, at any time at the option of the Company,
at a Redemption Price equal to the greater of (i) 100% of the principal amount
of the Series C Bonds being redeemed and (ii) as determined by an Independent
Investment Banker, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (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, in each case, accrued
and unpaid interest thereon to, but excluding, the Redemption Date; provided,
however, that installments of interest on the Series C Bonds that are due and
payable on an interest payment date falling on or prior to the relevant
Redemption Date will be payable to the Holder of the Series C Bond registered as
such at the close of business on the relevant Record Date according to the terms
and provisions of the Indenture.
The Series C Bonds are subject to the further redemption provisions and
procedures set forth in the Indenture.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Series C Bonds and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Series C Bonds shall occur and
be continuing, the unpaid principal of the Series C Bonds may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of the Securities of this series shall be
conclusive and binding upon such Holder and upon all future Holders of the
Securities of this series and of any Securities of this series issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon the Securities of
this series.
B-5
No reference herein to the Indenture and no provision of the Series C Bonds
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on the Series C Bonds at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of the Series C Bonds is registrable in the Security
Register, upon surrender of the Series C Bonds for registration of transfer at
the office or agency of the Company in any place where the principal of (and
premium, if any) and interest, if any, on the Series C Bonds are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Series C Bonds of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Series C Bonds are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Series C
Bonds are exchangeable for a like aggregate principal amount of Series C Bonds
of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of the Series C Bonds for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name the Series C Bonds are registered as the
owner hereof for all purposes, whether or not the Series C Bonds be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Series C Bonds are not subject to any sinking fund.
The Series C Bonds are entitled to the benefit of the Lien under the
Indenture.
Each Holder, by accepting a Series C Bond, agrees to be bound by all the
terms and provisions of the Indenture, as the same may be amended from time to
time in accordance with its terms.
This Series C Bond shall be governed by and construed in accordance with
the law of the State of New York, except that (i) if the Third Supplemental
Indenture governing this Series C Bond shall become qualified and shall become
subject to the Trust Indenture Act, this Series C Bond shall be governed by the
Trust Indenture Act to the extent that the Trust Indenture Act shall be
applicable and (ii) if the law of any jurisdiction wherein any portion of the
Mortgaged Property is located shall mandatorily govern the creation of a
mortgage lien on and security interest in, or perfection, priority or
enforcement of the Lien of the Indenture or exercise of remedies with respect
to, such portion of the Mortgaged Property, the Series C Bond shall be governed
by the law of such jurisdiction to the extent mandatory.
All capitalized terms used but not defined in this Series C Bond shall have
the meanings assigned to them in the Indenture.
B-6
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
______________________________
______________________________
please print or typewrite name and address including zip code of assignee
______________________________
the within Series C Bond and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________
attorney to transfer said Series C Bond on the books of the Security
Registrar with full power of substitution in the premises.
B-7
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SERIES C BONDS,
EXCEPT REGULATION S GLOBAL SECURITIES AND
REGULATION S DEFINITIVE SECURITIES]
In connection with any transfer of this Certificate occurring prior to the
date that is the earlier of the date of an effective Registration Statement or
the date two years after the later of the original issuance of this Series C
Bond or the last date on which this Series C Bond was held by International
Transmission Company or any affiliate of International Transmission Company, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[__] (a) the Series C Bonds are being transferred to a person whom we
reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) (a "QIB") that purchases for its own account
or for the account of one or more QIBs to whom notice has been given that the
resale, pledge or transfer is being made in reliance on Rule 144A under the
Securities Act;
or
[__] (b) the Series C Bonds are being transferred other than in accordance
with (a) above and documents are being furnished that comply with the conditions
of transfer set forth in this Series C Bond and the Indenture.
If neither of the foregoing boxes is checked, the Security Registrar shall
not be obligated to register this Series C Bond in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 209 of the Third Supplemental
Indenture shall have been satisfied.
Date: [___________, __] By: ________________
[Name of Transferor]
NOTE: The signature must correspond with the name as written upon the face
of the within-mentioned instrument in every particular, without alteration or
any change whatsoever.
Signature Guarantee: ______________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-8
EXHIBIT C
[Form of Regulation S Transfer Certificate]
[Date]
International Transmission Company (the "COMPANY")
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▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
The Bank of New York Trust Company, N.A. (the "TRUSTEE")
▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dear Ladies and Gentlemen:
In connection with our proposed transfer of $__________ aggregate principal
amount of 6.125% First Mortgage Bonds, Series C, due March 31, 2036 (the "SERIES
C BONDS") of the Company, we confirm that:
(i) the offer of the Series C Bonds was not made to a person in the
United States;
(ii) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(iii) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S,
as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during the Distribution Compliance Period
and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may
be.
The Company and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________________
Authorized Signature
C-1
EXHIBIT D
DESCRIPTION OF PROPERTIES
The following properties of the Company, owned as of the date hereof, have
been acquired by the Company subsequent to the date of the Original Indenture:
