Exhibit C(1)
______________________________________________________________________________
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
Fiftieth Supplemental Indenture
Dated: October 1, 2002
$150,000,000 First Mortgage Bonds,
8-1/8% Series, due 2010
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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This FIFTIETH SUPPLEMENTAL INDENTURE (hereinafter this "Supplemental
Indenture"), dated October 1, 2002 is made by and between Portland General
Electric Company, an Oregon corporation (hereinafter called the "Company"), and
HSBC Bank USA (formerly The Marine Midland Trust Company of New York), a New
York banking corporation and trust company (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as bonds of an initial series designated "First Mortgage Bonds, 3-1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ---------------
First 11-1-47 3-1/2 % Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2 % Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2 % Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8 % Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8 % Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4 % Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8 % Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2 % Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4 % Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8 % Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8 % Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4 % Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4 % Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70 % Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8 % Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60 % Series due October 1, 1997 24,000,000 (1)
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ---------------
Seventeenth 4-1-70 8-3/4 % Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8 % Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8 % Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4 % Series due November 1, 2002 20,000,000 (4)
Twenty-first 4-1-73 7.95 % Series due April 1, 2003 35,000,000 (4)
Twenty-second 10-1-73 8-3/4 % Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2 % Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10 % Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8 % Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8 % Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2 % Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4 % Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4 % Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40 % Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80 % Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4 % Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8 % Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2 % Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8 % Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4 % Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8 % Series due March 1, 2016 100,000,000 (4)
Xxxxxxxx 00-0-00 Xxxxxx Xxxx Note Series 200,000,000
Xxxxx-xxxxx 00-0-00 Xxxxxx Xxxx Note Series I 150,000,000
Forty-second 4-1-93 7-3/4 % Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Notes Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Notes Series III 75,000,000 (1)
Forty-fifth 5-1-95 Medium Term Notes Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Notes Series V 50,000,000 (1)
Forty-seventh 12-14-01 Second Series due 2002 150,000,000
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ---------------
Forty-eighth 6-1-02 Collateral Series due 2003 72,000,000
Forty-ninth 6-1-02 Second Collateral Series due 2003 150,000,000
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series,"
"Bonds of the 1977 Second Series," "Bonds of the 1983 Series," "Bonds of the
1984 Series," "Bonds of the 1986 Series," "Bonds of the 4-7/8% Series due 1987,"
"Bonds of the 5 1/2% Series due 1987," "Bonds of the 1990 Series," "Bonds of the
1991 Series," "Bonds of the 4-5/8% Series due 1993," "Bonds of the 4 3/4%
Series due 1993," "Bonds of the 1994 Series," "Bonds of the 1995 Series," "Bonds
of the 1996 Series," "Bonds of the 1997 Series," "Bonds of the 1977 Third
Series," "Bonds of the 2000 Series," "Bonds of the 2001 Series," "Bonds of the
2002 Series," "Bonds of the 2003 Series," "Bonds of the 2003 Second Series,"
"Bonds of the 1980 Series," "Bonds of the 1982 Series," "Bonds of the 1985
Series," "Bonds of the 2005 Series," "Bonds of the 2006 Series," "Bonds of the
1996 Second Series," "Bonds of the 2007 Series," "Bonds of the 1999 Series,"
"Bonds of the 1998 Series," "Bonds of the 2000 Second Series," "Bonds of the
2010 Series," "Bonds of the 2012 Series," "Bonds of the Extendable Series A,"
"Bonds of the 1995 Second Series," "Bonds of the 2016 Series," "Bonds of the
Medium Term Note Series," "Bonds of the Medium Term Note Series I," "Bonds of
the 2023 Series," "Bonds of the Medium Term Note Series II," "Bonds of the
Medium Term Note Series III," "Bonds of the Medium Term Note Series IV," "Bonds
of the Medium Term Note Series V," "Bonds of the 2002 Second Series," "Bonds of
the Collateral Series," and "Bonds of the Second Collateral Series,"
respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto, which
shall thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the bonds of any one or more series, of such character
and of such amount, and upon such terms and conditions as shall be contained in
such supplemental indenture; and
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WHEREAS, the Company has heretofore executed and delivered to the
Trustee forty-nine supplemental indentures amending in certain respects the
Original Indenture (such Original Indenture as so supplemented and amended is
hereinafter referred to as the "Mortgage"); and
WHEREAS, the Company desires to further amend the Mortgage in certain
respects pursuant to Section 17.01 of the Original Indenture, and the Trustee
has agreed to such amendments; and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, 8-1/8% Series due 2010"
(sometimes herein referred to as the "Bonds of the 2010 Second Series"), and to
specify the form and provisions of the Bonds of the 2010 Second Series, and to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Mortgage certain additional properties acquired by the Company
since the execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time to issue $150,000,000
aggregate principal amount of Bonds of the 2010 Second Series under and in
accordance with the terms of the Mortgage and this Supplemental Indenture (the
Mortgage as so supplemented and amended by this Supplemental Indenture referred
to as the "Indenture"); and
WHEREAS, the Bonds of the 2010 Second Series and the Trustee's
authentication certificate to be executed on the Bonds of the 2010 Second Series
are to be substantially in the following form, respectively:
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(Form of Bond of the 8-1/8% Series due 2010)
[Face of Bond]
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS BOND, AGREES FOR
THE BENEFIT OF THE COMPANY THAT THIS BOND MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION
ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS BOND IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT OR (5) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF EACH STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR (AS DEFINED BELOW) HOLDING THIS BOND AGREES IT WILL FURNISH
TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY
MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS BOND COMPLIES
WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS BOND,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT AND THAT IT IS HOLDING THIS BOND FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT.
If issued in global form and deposited with, or on behalf of, The Depository
Trust Company or its nominee (a "Global Bond"), include the following:
THIS GLOBAL BOND IS HELD BY THE DEPOSITORY (AS DEFINED IN THE MORTGAGE AND
SUPPLEMENTAL INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.08 OF THE SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 1.08(a) OF THE SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.06
OF THE MORTGAGE AND (IV) THIS GLOBAL BOND MAY BE TRANSFERRED AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY
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PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
No. _____ $__________
CUSIP No. _____
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, 8-1/8% SERIES DUE 2010
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of $_____________ on
February 1, 2010 (the "Maturity Date"), except to the extent redeemed or repaid
prior to the Maturity Date, and to pay interest thereon semi-annually in arrears
on February 1 and August 1 (each an "Interest Payment Date") each year at the
rate of 8-1/8 per cent per annum, for the period from the February 1 or August
1, as the case may be, next preceding the date hereof to which interest has been
paid, or, if the date hereof is a February 1 or August 1 to which interest has
been paid, from the date hereof, or, if the date hereof is prior to February 1,
2003, from October 10, 2002, provided, however, that if and to the extent the
Company shall default in payment of the interest due on such February 1 or
August 1, then from the next preceding date to which interest has been paid or
if such default shall be in respect of the interest due on February 1, 2003,
then from October 10, 2002, until payment of the principal hereof has been made
or duly provided for. If the Maturity Date or an Interest Payment Date falls on
a day which is not a Business Day, as defined below, principal or interest
payable with respect to such Maturity Date or Interest Payment Date will be paid
on the next succeeding Business Day with the same force and effect as if made on
such Maturity Date or Interest Payment Date, as the case may be. The person in
whose name this bond (or one or more predecessor bonds) is registered at the
close of business on the fifteenth day (whether or not such day is a Business
Day) next preceding such Interest Payment Date (the "Record Date") shall be
entitled to receive the interest payable hereon on such Interest Payment Date
notwithstanding the cancellation of this bond upon any registration of transfer
or exchange thereof subsequent to such Record Date and prior to such Interest
Payment Date, unless the Company shall default in the payment of interest due on
such Interest Payment Date, in which case the defaulted interest shall be paid
to the person in whose name this bond (or one or more predecessor bonds) is
registered on a subsequent record date fixed by the Company, which subsequent
record date shall be fifteen (15) days prior to the payment of such defaulted
interest; provided, however, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. As used
herein "Business Day" means any day, other than a Saturday or Sunday, on which
banks in The City of New York, New York are not required or authorized by law to
close.
Payment of the principal of and interest on this bond will be made in
immediately available funds at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, including redemption terms, and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
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This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated:
PORTLAND GENERAL ELECTRIC COMPANY
By:_______________________________
[Title]
Attest: ________________________
[Assistant] Secretary
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(Form of Trustee's Authentication Certificate for
Bonds of the 8-1/8% Series due 2010)
This is one of the bonds, of the series designated herein, described
in the within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE
By:____________________________
Authorized Officer
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[Reverse of Bond]
This bond is one of the bonds of a series designated as First Mortgage
Bonds, 8-1/8% Series due 2010 (sometimes herein referred to as the "Bonds of
the 2010 Second Series") limited to a maximum aggregate principal amount of
$150,000,000. Bonds of the 2010 Second Series are bonds of an authorized issue
of bonds of the Company known as First Mortgage Bonds, not limited as to maximum
aggregate principal amount, all issued or issuable in one or more series under
and equally secured (except insofar as any sinking fund, replacement fund or
other fund established in accordance with the provisions of the Indenture
hereinafter mentioned may afford additional security for the bonds of any
specific series) by an Indenture of Mortgage and Deed of Trust dated July 1,
1945, duly executed and delivered by the Company to HSBC Bank USA (formerly
known as The Marine Midland Trust Company of New York), as Trustee, as
supplemented, amended and modified by forty-nine supplemental indentures and by
the Fiftieth Supplemental Indenture (such Indenture of Mortgage and Deed of
Trust as so supplemented, amended and modified by such forty-nine supplemental
indentures and this Fiftieth Supplemental Indenture being hereinafter called the
"Indenture"), to which Indenture and all indentures supplemental thereto,
including the Fiftieth Supplemental Indenture, reference is hereby made for a
description of the property mortgaged and pledged as security for said bonds,
the nature and extent of the security, and the rights, duties and immunities
thereunder of the Trustee, the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security, and the terms upon which
said bonds may be issued thereunder. Capitalized terms used herein and not
defined herein shall have the respective meanings in the Indenture, unless
otherwise noted.
The Bonds of the 2010 Second Series are not subject to any sinking
fund.
The Bonds of the 2010 Second Series may be redeemed by the Company
prior to maturity as a whole, at any time, or in part, from time to time on
notice given not more than ninety (90) nor less than thirty (30) days prior to
the date of such redemption at the option of the Company at a price equal to the
greater of (i) the principal amount of the portion of this bond to be redeemed
or (ii) the sum of the present values of the remaining scheduled payments of
principal and interest (not including any portion of such payments of interest
accrued as of the date of redemption) due on this bond (or portion thereof) to
be redeemed, discounted to the redemption date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Yield, plus
50 basis points, together in each case with accrued and unpaid interest to the
date of redemption.
If this bond or any portion thereof ($1,000 or an integral multiple
thereof) is duly called for redemption and payment duly provided for as
specified in the Indenture, this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date payment is so
provided for and shall cease to bear interest from and after the date fixed for
such redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a
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bond or bonds (but only of authorized denominations of the same series) for the
unredeemed balance of the principal amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of all holders hereof which will
(i) extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof, (ii)
permit the creation of any lien, not otherwise permitted, prior to or on a
parity with the lien of the Indenture, or (iii) reduce the percentage of the
principal amount of the bonds upon the approval or consent of the holders of
which modifications or alterations may be made as aforesaid.
The transfer of this bond is registrable by the registered owner
hereof in person or by such owner's attorney duly authorized in writing, at the
corporate trust office of the Trustee in the Borough of Manhattan, City and
State of New York, upon surrender of this bond for cancellation and upon payment
of any taxes or other governmental charges payable upon such transfer, and
thereupon a new registered bond or bonds of the same series and of a like
aggregate principal amount will be issued to the transferee or transferees in
exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or on account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form
without coupons in denominations of $1,000 or any amount in excess thereof that
is an integral multiple thereof, except that bonds issued to institutional
"accredited investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the
Securities Act, will be in denominations of at least $100,000. The registered
owner of this bond at its option may surrender the same for cancellation at said
office of the Trustee and receive in exchange therefor the same aggregate
principal amount of registered bonds of the same series but of other authorized
denominations upon payment of any taxes or other governmental charges payable
upon such exchange and subject to the terms and conditions set forth in the
Indenture.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding,
including in certain cases specified percentages of bonds of particular series,
may in certain cases, to the extent and as provided in the Indenture, waive
certain defaults thereunder and the consequences of such defaults.
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No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
(End of Form of Bond of the 8-1/8% Series due 2010)
and
WHEREAS, all acts and proceedings required by law and by the charter
or articles of incorporation and bylaws of the Company necessary to make the
Bonds of the 2010 Second Series to be issued hereunder, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute this
Supplemental Indenture a valid and binding instrument, have been done and taken;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
First Mortgage Bonds at any time issued and outstanding under the Original
Indenture as supplemented and modified by the forty-nine supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Indenture on the properties of the Company hereinafter described, or
referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the 2010 Second
Series by the holders thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the Company has executed and delivered this
Supplemental Indenture and by these presents does grant, bargain, sell, warrant,
alien, convey, assign, transfer, mortgage, pledge, hypothecate, set over and
confirm unto the Trustee the following property, rights, privileges and
franchises (in addition to all other property, rights, privileges and franchises
heretofore subjected to the lien of the Original Indenture as supplemented by
the forty-nine supplemental indentures hereinbefore described and not heretofore
released from the lien thereof, all of which shall secure all bonds, including
the Bonds of the 2010 Second Series), to wit:
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CLAUSE I
Without in any way limiting anything in the Mortgage or hereinafter
described, all and singular the lands, real estate, chattels real, interests in
land, leaseholds, ways, rights-of-way, easements, servitudes, permits and
licenses, lands under water, riparian rights, franchises, privileges, electric
generating plants, electric transmission and distribution systems, and all
apparatus and equipment appertaining thereto, offices, buildings, warehouses,
garages, and other structures, tracks, machine shops, materials and supplies and
all property of any nature appertaining to any of the plants, systems, business
or operations of the Company, whether or not affixed to the realty, used in the
operation of any of the premises or plants or systems or otherwise, which have
been acquired by the Company since the execution and delivery of the Original
Indenture and not heretofore included in any indenture supplemental thereto, and
now owned or which may hereafter be acquired by the Company (other than excepted
property as defined in the Mortgage).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Mortgage) and all renewals, extensions, enlargements and modifications of any of
them, which have been acquired by the Company since the execution and the
delivery of the Original Indenture and not heretofore included in any indenture
supplemental thereto, and now owned or which may hereafter be acquired by the
Company.
CLAUSE III
Also all other property, real, personal or mixed, tangible or
intangible (other than excepted property as defined in the Mortgage) of every
kind, character and description and wheresoever situated, whether or not useful
in the generation, manufacture, production, transportation, distribution, sale
or supplying of electricity, hot water or steam, which have been acquired by the
Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Mortgage).
CLAUSE IV
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and every part and parcel thereof, and all the estate, right,
title, interest, property, claim and demand of every nature whatsoever of the
Company at law, in equity or otherwise howsoever, in, of and to such property
and every part and parcel thereof (other than excepted property as defined in
the Mortgage).
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TO HAVE AND TO HOLD all of said property, real, personal and mixed, and
all and singular the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby mortgaged, conveyed, pledged or assigned, or intended
so to be, together with all the appurtenances thereto appertaining and the
rents, issues and profits thereof, unto the Trustee and its successors and
assigns, forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Mortgage;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
bonds authenticated and delivered under the Original Indenture and the
forty-nine supplemental indentures hereinbefore described or this Supplemental
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one bond over any other by reason of priority in
the time of issue, sale or negotiation thereof or otherwise, except as provided
in Section 11.28 of the Mortgage, so that, subject to said Section 11.28, each
and all of said bonds shall have the same right, lien and privilege under the
Original Indenture and the forty-nine supplemental indentures hereinbefore
described, or this Supplemental Indenture, and shall be equally secured thereby
and hereby and shall have the same proportionate interest and share in the trust
estate, with the same effect as if all of the bonds had been issued, sold and
negotiated simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the forty-nine
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE 2010 SECOND SERIES AND
CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the 2010 Second Series. There
is hereby established a series of First Mortgage Bonds of the Company designated
and entitled as "First Mortgage Bonds, 8-1/8% Series due 2010" (sometimes
referred to as the "Bonds of the 2010 Second Series"). The aggregate principal
amount of the Bonds of the 2010 Second Series shall be limited to $150,000,000,
excluding, however, any Bonds of the 2010 Second Series which may be executed,
authenticated and delivered in exchange for or in lieu of or in substitution for
other Bonds of such Series pursuant to the provisions of the Indenture.
The definitive Bonds of the 2010 Second Series (the "Definitive Bonds")
shall be issuable in substantially the form as hereinabove set forth in fully
registered form without coupons in the denomination of $1,000, or any amount in
excess thereof that is an integral multiple of $1,000, except that bonds issued
to institutional "accredited investors" ("Institutional Accredited Investors"),
as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act of
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1933, as amended (the "Securities Act"), will be in denominations of at least
$100,000. With the exception of bonds issued to Institutional Accredited
Investors, which shall be in the form of Definitive Bonds, Bonds of the 2010
Second Series will be issued in global form ("Global Bonds") and deposited with,
or on behalf of, The Depository Trust Company ("DTC" or the "Depository") or its
nominee. Except as set forth herein, holders of beneficial interests in Global
Bonds will not receive or be entitled to receive physical delivery in exchange
therefor and will not be considered to be the owners or holders of such Global
Bonds for any purpose under the Bonds of the 2010 Second Series or the
Indenture.
Notwithstanding the provisions of Section 2.05 of the Mortgage, each
Bond of the 2010 Second Series shall be dated as of the date of its
authentication, shall mature on February 1, 2010 (the "Maturity Date"), except
to the extent redeemed or repaid prior to the Maturity Date, and shall bear
interest semi-annually in arrears from the February 1 or August 1, as the case
may be, next preceding the date thereof to which interest has been paid, or, if
the date thereof is a February 1 or August 1 to which interest has been paid,
from the date thereof, or, if the date thereof is prior to February 1, 2003,
from October 10, 2002, provided, however, that if and to the extent the Company
shall default in payment of the interest due on such February 1 or August 1,
then from the next preceding date to which interest has been paid or if such
default shall be in respect of the interest due on February 1, 2003, then from
October 10, 2002. Each Bond of the 2010 Second Series shall bear interest at the
rate of 8-1/8 per cent per annum until the payment of the principal thereof has
been made or duly provided for, such interest to be payable semi-annually on
February 1 and August 1 ("Interest Payment Date") in each year. If the Maturity
Date or an Interest Payment Date falls on a day which is not a Business Day, as
defined below, principal or interest payable with respect to such Maturity Date
or Interest Payment Date will be paid on the next succeeding Business Day with
the same force and effect as if made on such Maturity Date or Interest Payment
Date, as the case may be. The person in whose name any Bond of the 2010 Second
Series is registered at the close of business on the applicable Record Date (as
defined below) with respect to any Interest Payment Date shall be entitled to
receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Bond of the 2010 Second Series upon any
registration of transfer or exchange thereof subsequent to such Record Date and
prior to such Interest Payment Date, unless the Company shall default in the
payment of the interest due on such Interest Payment Date, in which case such
defaulted interest shall be paid to the person in whose name such Bond of the
2010 Second Series is registered on a subsequent record date fixed by the
Company, which subsequent record date shall be fifteen (15) days prior to the
payment of such defaulted interest; provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof
shall be payable. As used herein the term "Business Day" means any day, other
than a Saturday or Sunday, on which banks in The City of New York, New York are
not required or authorized by law to close. As used herein, the term "Record
Date" with respect to any Interest Payment Date shall mean the fifteenth day
(whether or not such day is a Business Day) next preceding such Interest Payment
Date. The principal of the Bonds of the 2010 Second Series shall be payable in
any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts at the
office or agency of the Company in the Borough of Manhattan, City and State of
New York, and interest on such Bonds of the 2010 Second Series shall be payable
in like coin or currency at said office or agency.
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Upon compliance with the provisions of Section 2.06 of the Mortgage and
as provided in this Supplemental Indenture, and upon payment of any taxes or
other governmental charges payable upon such exchange, Bonds of the 2010 Second
Series may be exchanged for a new Bond or Bonds of the 2010 Second Series of
different authorized denominations of like aggregate principal amount, subject,
however, to the provisions of Section 1.08 below. The Trustee hereunder shall,
by virtue of its office as such Trustee, be the registrar and transfer agent of
the Company for the purpose of registering permitted transfers of Bonds of the
2010 Second Series.
Notwithstanding the provisions of Section 2.11 of the Mortgage, no
service charge shall be made for any exchange or registration of transfer of
Bonds of the 2010 Second Series, but the Company at its option may require
payment of a sum sufficient to cover any tax or other governmental charge
incident thereto.
SECTION 1.02. Redemption Provisions for Bonds of the 2010 Second
Series. The Bonds of the 2010 Second Series may be redeemed prior to maturity at
any time, in whole or in part, upon prior notice given by mailing such notice to
the respective registered owners of such Bonds of the 2010 Second Series not
less than thirty (30) nor more than ninety (90) days prior to the redemption
date and as otherwise required by the provisions of Article Nine of the
Mortgage, at the option of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of the portion of the Bonds of the
2010 Second Series to be redeemed or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest (not including any
portion of such payments of interest accrued as of the date of redemption) due
on the Bonds of the 2010 Second Series (or portion thereof) to be redeemed,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Yield, plus 50 basis
points, together in each case with accrued and unpaid interest to the date of
redemption. The Company shall give the Trustee notice of such redemption price
immediately after the calculation thereof, and the Trustee shall have no
responsibility for such calculation.
The following definitions shall apply for purposes of this Section
1.02:
(a) "Treasury Yield" 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.
(b) "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 Bonds of the 2010
Second Series to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of the Bonds of the 2010 Second Series.
(c) "Comparable Treasury Price" means, with respect to any redemption
date, (1) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each
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case as a percentage of its principal amount) on the third Business
Day preceding the 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 (2) if that release (or
any successor release) is not published or does not contain those
prices on that Business Day, then (A) the average of the Reference
Treasury Dealer Quotations for the redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations for the
redemption date, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
quotations.
(d) "Independent Investment Banker" means Xxxxxx Brothers Inc. or its
successor or, if such firm or its successor is unwilling to select the
Comparable Treasury Issue, one of the remaining Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
(e) "Reference Treasury Dealer" means (1) each of Xxxxxx Brothers Inc.
and any other primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer") designated by, and not affiliated
with, Xxxxxx Brothers Inc. and its successors; provided, however, that
if Xxxxxx Brothers Inc. or any of its designees ceases to be a Primary
Treasury Dealer, the Company will appoint another Primary Treasury
Dealer as a substitute and (2) any other Primary Treasury Dealer
selected by the Company.
(f) "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Company by the
Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day preceding the redemption date.
SECTION 1.03. Sections 4.04, 4.05 and 4.06 to Remain in Effect.
Notwithstanding the provisions of Sections 4.04, 4.05, 4.06 and 4.07 of the
Mortgage, the provisions of Sections 4.04, 4.05 and 4.06 of the Mortgage shall
remain in full force and effect and shall be performed by the Company so long as
any Bonds of the 2010 Second Series remain outstanding.
SECTION 1.04. Certain Requirements of Mortgage to Remain Applicable.
The requirements which are stated in the next to the last paragraph of Section
1.13 and in Clause (9) of Paragraph A of Section 3.01 of the Mortgage to be
applicable so long as any of the Bonds of the 1975 Series are outstanding shall
remain applicable so long as any of the Bonds of the 2010 Second Series are
outstanding.
SECTION 1.05. Certain Exceptions to Sections 2.06 and 2.10 of the
Mortgage. Notwithstanding the provisions of Section 2.06 or Section 2.10 of the
Mortgage, the Company shall not be required (a) to issue, register, discharge
from registration, exchange or register the transfer of any Bond of the 2010
Second Series for a period of fifteen (15) days next preceding any selection by
the Trustee of Bonds of
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the 2010 Second Series to be redeemed or (b) to register, discharge from
registration, exchange or register the permitted transfer of any Bond of the
2010 Second Series so selected for redemption in its entirety or (c) to exchange
or register the permitted transfer of any portion of a Bond of the 2010 Second
Series which portion has been so selected for redemption.
SECTION 1.06. Reference to Minimum Provision for Depreciation in
Certificate of Available Additions. So long as any Bonds of the 2010 Second
Series remain outstanding, all references to the minimum provision for
depreciation in the form of certificate of available additions set forth in
Section 3.03 of the Mortgage shall be included in any certificate of available
additions filed with the Trustee, but whenever Bonds of the 2010 Second Series
shall no longer be outstanding, all references to such minimum provisions for
depreciation may be omitted from any such certificate.
SECTION 1.07. Reporting Obligations. To the extent the Company does
not file the following documents with the Securities and Exchange Commission
(the "SEC"), so long as any Bonds of the 2010 Second Series are outstanding, the
Company shall furnish to the Trustee, within the time periods specified in the
SEC's rules and regulations, the following:
(a) All quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and
results of operations of the Company and its consolidated subsidiaries
and, with respect to the annual information only, a report thereon by
the Company's certified independent accountants.
(b) All current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
The Trustee shall retain such documents in accordance with its customary
procedures.
SECTION 1.08. Transfer and Exchange Provisions.
(a) Transfer and Exchange of Global Bonds. Except as expressly
permitted herein, Global Bonds may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or any such nominee to a successor of DTC or a
nominee of such successor. Global Bonds shall be exchangeable for
corresponding Definitive Bonds registered in a name other than DTC or
its nominee only if (i) DTC (A) notifies the Company that it is
unwilling or unable to continue as a Depository for any of the Global
Bonds or (B) at any time ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (ii) there shall have occurred and be continuing an event of
default with respect to the Bonds of the 2010 Second Series or (iii)
the Company executes and delivers to the Trustee an order to the
effect that the Global Bonds will be so exchangeable. Upon the
occurrence of any of the preceding events in (i), (ii) or (iii) above,
Definitive Bonds shall be issued in such names as the Depository shall
instruct the Trustee. Global Bonds also may be exchanged or replaced,
in whole or in part, as provided herein. Every Bond of the 2010 Second
Series authenticated and delivered in exchange for, or in lieu of, a
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Global Bond or any portion thereof, pursuant to this Section 1.08(a)
shall be authenticated and delivered in the form of, and shall be, a
Global Bond. A Global Bond may not be exchanged for another Bond of
the 2010 Second Series, whether in global or certificated form, other
than as provided in this Section 1.08.
(b) Transfer and Exchange of Beneficial Interests in the Global Bonds.
The transfer and exchange of beneficial interests in the Global Bonds
shall be effected through the Depository, in accordance with the
provisions of the Indenture and the applicable rules and procedures of
DTC, Xxxxxx Guaranty Trust Company of New York, Brussels office, or
its successor, as operator of the Euroclear system ("Euroclear") and
Clearstream Banking, societe anonyme, Luxembourg ("Clearstream") that
apply to such transfer or exchange at the relevant time (the
"Applicable Procedures"). Beneficial interests in the Global Bonds
shall be subject to restrictions on transfer comparable to those set
forth herein to the extent required in order for the Company to comply
with the Securities Act. Transfers and exchanges of beneficial
interests in the Global Bonds also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one
or more of the other following subparagraphs, as applicable:
(i) Transfers and Exchanges of Beneficial Interests in Global
Bonds. Transfers of beneficial interest in the Bonds of the 2010
Second Series shall require delivery to the Trustee, as
registrar, by the transferor of either (A)(1) an order from a
person who has an account with DTC, Euroclear or Clearstream (a
"Participant") or an entity that clears through or maintains a
direct or indirect custodial relationship with a Participant (an
"Indirect Participant") given to the Depository in accordance
with the Applicable Procedures directing the Depository to credit
or cause to be credited a beneficial interest in another Global
Bond in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance
with the Applicable Procedures containing information regarding
the Participant account to be credited with such increase or
(B)(1) an order from a Participant or an Indirect Participant
given to the Depository in accordance with the Applicable
Procedures directing the Depository to cause to be issued a
Definitive Bond in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given by the
Depository to the Trustee, as registrar, containing information
regarding the person in whose name such Definitive Bond shall be
registered to effect the transfer or exchange referred to in
(B)(1) above. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Bonds
contained in the Indenture and the Bonds of the 2010 Second
Series or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global
Bond(s) pursuant to the Indenture.
(ii) Transfer and Exchange of Beneficial Interests in a Global
Bond for Beneficial Interests in the Unrestricted Global Bond. A
beneficial interest in any Global Bond may be exchanged for a
beneficial interest in a Global Bond not bearing or required to
bear the private placement legend (the "Private Placement
Legend") set forth on the form of face of the Bonds of the 2010
Second Series and
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in Section 1.08(f)(i) below (an "Unrestricted Global Bond") or
transferred to a person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Bond if the
exchange or transfer complies with the requirements of Section
1.08(b)(i) and the Trustee, as registrar, receives the following:
(A) if the holder of such beneficial interest in a Global Bond
proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Bond, a certificate from such
holder substantially in the form of Exhibit B hereto, including
the certifications in item (1)(a) thereof; or (B) if the holder
of such beneficial interest in a Global Bond proposes to transfer
such beneficial interest to a person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted
Global Bond, a certificate from such holder substantially in the
form of Exhibit A hereto, including the certifications in item
(4) thereof; and a written opinion of legal counsel, reasonably
acceptable to the Trustee, as registrar, and the Company to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act ("Opinion
of Counsel").
If any such transfer is effected pursuant to the foregoing at a time
when an Unrestricted Global Bond has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance
with the terms of the Indenture, the Trustee shall authenticate one or
more Unrestricted Global Bonds in an aggregate principal amount equal
to the aggregate principal amount of beneficial interests transferred
pursuant to subclause (ii) above. Beneficial interests in an
Unrestricted Global Bond cannot be exchanged for, or transferred to
persons who take delivery thereof in the form of, a beneficial
interest in a Global Bond containing the Private Placement Legend.
(c) Transfer or Exchange of Beneficial Interests in Global Bonds for
Definitive Bonds.
(i) Beneficial Interests in Global Bonds to Definitive Bonds.
Subject to the limitations set forth in Sections 1.01 and
1.08(a), if any holder of a beneficial interest in a Global Bond
proposes to exchange such beneficial interest for a Definitive
Bond or to transfer such beneficial interest to a person who
takes delivery thereof in the form of a Definitive Bond, then,
upon receipt by the Trustee, as registrar, of the following
documentation:
(A) if the holder of such beneficial interest in a Global
Bond proposes to exchange such beneficial interest for a
Definitive Bond, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (2)(a) thereof;
(B) if the holder of such beneficial interest in a Global
Bond proposes to transfer such beneficial interest to
another person who takes delivery thereof in the form of a
Definitive Bond, a certificate from such holder to the
effect set forth in Exhibit A hereto, including any
certifications and opinions of counsel required therein;
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the Trustee shall cause the aggregate principal amount of
the applicable Global Bond to be reduced accordingly
pursuant to Section 1.08(g), and the Company shall execute
and, upon receipt of an authentication order pursuant to the
terms of the Indenture, the Trustee shall authenticate and
deliver to the person designated in the instructions a
Definitive Bond in the appropriate principal amount. Any
Definitive Bond issued in exchange for a beneficial interest
in a Global Bond pursuant to this Section 1.08(c) shall be
registered in such name or names and in such authorized
denomination or denominations as the holder of such
beneficial interest shall instruct the Trustee, as
registrar, through instructions from the Depository and the
Participant or Indirect Participant. The Trustee shall
deliver such Definitive Bonds to the persons in whose names
such Definitive Bonds are so registered. Any Definitive Bond
issued in exchange for a beneficial interest in a Global
Bond pursuant to this Section 1.08(c)(i) shall bear the
Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Global Bonds to Unrestricted
Definitive Bonds. Subject to the limitations set forth in
Sections 1.01 and 1.08(a), a holder of a beneficial interest in a
Global Bond may exchange such beneficial interest for one or more
Definitive Bonds that do not bear and are not required to bear
the Private Placement Legend (the "Unrestricted Definitive
Bonds") or may transfer such beneficial interest to a person who
takes delivery thereof in the form of an Unrestricted Definitive
Bond only if the Trustee, as registrar, receives the following:
(A) if the holder of such beneficial interest in a Global Bond
proposes to exchange such beneficial interest for an Unrestricted
Definitive Bond, a certificate from such holder substantially in
the form of Exhibit B hereto, including the certifications in
item (1)(b) thereof; or (B) if the holder of such beneficial
interest in a Global Bond proposes to transfer such beneficial
interest to a person who shall take delivery thereof in the form
of an Unrestricted Definitive Bond, a certificate from such
holder substantially in the form of Exhibit A hereto, including
the certifications in item (4) thereof; and, in each such case
set forth in this subclause (ii) (except in the case of a
transfer contemplated by item (4)(a) or (d) of Exhibit A), an
Opinion of Counsel.
(iii) Beneficial Interests in Unrestricted Global Bonds to
Unrestricted Definitive Bonds. Subject to the limitations set
forth in Sections 1.01 and 1.08(a), if any holder of a beneficial
interest in an Unrestricted Global Bond proposes to exchange such
beneficial interest for an Unrestricted Definitive Bond or to
transfer such beneficial interest to a person who takes delivery
thereof in the form of an Unrestricted Definitive Bond, then,
upon satisfaction of the conditions set forth in Section
1.08(b)(ii), the Trustee shall cause the aggregate principal
amount of the applicable Unrestricted Global Bond to be reduced
accordingly pursuant to Section 1.08(g), and the Company shall
execute and, upon receipt of an authentication order pursuant to
the Mortgage and this Supplemental Indenture, the Trustee shall
authenticate and deliver to the person designated in the
instructions an Unrestricted Definitive Bond in the appropriate
principal amount.
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Any Unrestricted Definitive Bond issued in exchange for a
beneficial interest pursuant to this Section 1.08(c)(iii) shall
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Trustee, as registrar, through
instructions from the Depository and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted
Definitive Bonds to the persons in whose names such Unrestricted
Definitive Bonds are so registered. Any Unrestricted Definitive
Bond issued in exchange for a beneficial interest in an
Unrestricted Global Bond pursuant to this Section 1.08(c)(iii)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Bonds for Beneficial Interests
in Global Bonds.
(i) Definitive Bonds to Beneficial Interests in Global Bonds. If
any holder of a Definitive Bond proposes to exchange such
Definitive Bond for a beneficial interest in a Global Bond or to
transfer such Definitive Bond to a person who takes delivery
thereof in the form of a beneficial interest in a Global Bond,
then, upon receipt by the Trustee, as registrar, of the following
documentation:
(A) if the holder of such Definitive Bond proposes to
exchange such Definitive Bond for a beneficial interest in a
Global Bond, a certificate from such holder substantially in
the form of Exhibit B hereto, including the certifications
in item (2)(b) thereof;
(B) if the holder of such Definitive Bond proposes to
transfer such Definitive Bond to another person who takes
delivery thereof in the form of a beneficial interest in a
Global Bond, a certificate from such holder to the effect
set forth in Exhibit A hereto, including any certifications
and opinions of counsel required therein;
the Trustee shall cancel the Definitive Bond, increase or cause
to be increased the aggregate principal amount of the appropriate
Global Bond; provided, however, any holder of a Bond of the 2010
Second Series that is an Institutional Accredited Investor may
not hold a beneficial interest in a Global Bond and may only be
issued Definitive Bonds.
(ii) Definitive Bonds to Beneficial Interests in Unrestricted
Global Bonds. A holder of a Definitive Bond may exchange such
Definitive Bond for a beneficial interest in an Unrestricted
Global Bond or transfer such Definitive Bond to a person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond only if the Trustee, as registrar,
receives the following: (A) if the holder of such Definitive
Bonds proposes to exchange such Definitive Bonds for a beneficial
interest in the Unrestricted Global Bond, a certificate from such
holder substantially in the form of Exhibit B hereto, including
the certifications in item (1)(c) thereof; or (B) if the holder
of such Definitive Bonds proposes to transfer such Definitive
Bonds to a person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Bond, a
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certificate from such holder substantially in the form of Exhibit
A hereto, including the certifications in item (4) thereof; and
(except in the case of a transfer contemplated by item (4)(a) or
(d) of Exhibit A), an Opinion of Counsel; provided, however, any
holder of a Bond of the 2010 Second Series that is an
Institutional Accredited Investor may not hold a beneficial
interest in a Global Bond and may only be issued Definitive
Bonds. Upon satisfaction of the conditions of this Section
1.08(d)(ii), the Trustee shall cancel the Definitive Bonds so
transferred or exchanged and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Bond.
(iii) Unrestricted Definitive Bonds to Beneficial Interests in
Unrestricted Global Bonds. A holder of an Unrestricted Definitive
Bond may exchange such Unrestricted Definitive Bond for a
beneficial interest in an Unrestricted Global Bond or transfer
such Unrestricted Definitive Bonds to a person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted
Global Bond at any time; provided, however, any holder of a Bond
of the 2010 Second Series that is an Institutional Accredited
Investor may not hold a beneficial interest in a Global Bond and
may only be issued Definitive Bonds. Upon receipt of a request
for such an exchange or for registration of such a transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Bond
and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Bonds.
(iv) Issuance of Unrestricted Global Bonds. If any such exchange
or transfer from a Definitive Bond to a beneficial interest in a
Global Bond is effected pursuant to subparagraphs (ii) or (iii)
of this Section 1.08(d) at a time when an Unrestricted Global
Bond has not yet been issued, the Company shall issue and, upon
receipt of an authentication order in accordance with the
Mortgage and this Supplemental Indenture, the Trustee shall
authenticate one or more Unrestricted Global Bonds in an
aggregate principal amount equal to the principal amount of
Definitive Bonds so exchanged or transferred.
(e) Transfer and Exchange of Definitive Bonds for Definitive Bonds.
Upon request by a holder of Definitive Bonds and such holder's
compliance with the provisions of this Section 1.08(e), the Trustee, as
registrar, shall register the transfer or exchange of Definitive Bonds.
Prior to such registration of transfer or exchange, the requesting
holder shall present or surrender to the Trustee, as registrar, the
Definitive Bonds duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Trustee, as registrar, duly
executed by such holder or by its attorney, duly authorized in writing.
In addition, the requesting holder shall provide any additional
certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 1.08(e).
(i) Definitive Bonds to Definitive Bonds. Any Definitive Bond may
be transferred to and registered in the name of persons who take
delivery thereof in the form of a Definitive Bond if the Trustee,
as registrar, receives from the
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transferor a certificate substantially in the form of Exhibit
A hereto, including the certifications and legal opinions
required therein.
(ii) Definitive Bonds to Unrestricted Definitive Bonds. Any
Definitive Bond may be exchanged by the holder thereof for an
Unrestricted Definitive Bond or transferred to a person or
persons who take delivery thereof in the form of an Unrestricted
Definitive Bond if the Trustee, as registrar, receives the
following: (A) if the holder of such Definitive Bonds proposes to
exchange such Definitive Bonds for an Unrestricted Definitive
Bond, a certificate from such holder substantially in the form of
Exhibit B hereto, including the certifications in item (1)(d)
thereof; or (B) if the holder of such Definitive Bonds proposes
to transfer such Definitive Bonds to a person who shall take
delivery thereof in the form of an Unrestricted Definitive Bond,
a certificate from such holder substantially in the form of
Exhibit A hereto, including the certifications in item (4)
thereof; and (except in the case of a transfer contemplated by
item (4)(a) or (d) of Exhibit A), an Opinion of Counsel.
(iii) Unrestricted Definitive Bonds to Unrestricted Definitive
Bonds. A holder of Unrestricted Definitive Bonds may transfer
such Unrestricted Definitive Bonds to a person who takes delivery
thereof in the form of an Unrestricted Definitive Bond. Upon
receipt of a request to register such a transfer, the Trustee, as
registrar, shall register the Unrestricted Definitive Bonds
pursuant to the instructions from the holder thereof.
(f) Legends. The following legends shall appear on the face of all
Global Bonds and Definitive Bonds issued under this Supplemental
Indenture unless specifically stated otherwise in the applicable
provisions of this Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Bond and each Definitive Bond (and all Securities
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
THIS BOND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS BOND, AGREES FOR THE BENEFIT
OF THE COMPANY THAT THIS BOND MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
OTHER THAN (A)(1) TO THE COMPANY, (2) IN A
TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS BOND IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
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UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (4) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT OR (5)
IN ACCORDANCE WITH ANOTHER APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) AND (B) IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF EACH
STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR (AS DEFINED BELOW)
HOLDING THIS BOND AGREES IT WILL FURNISH TO
THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY
MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS BOND COMPLIES WITH
THE FOREGOING RESTRICTIONS. THE HOLDER
HEREOF, BY PURCHASING THIS BOND, REPRESENTS
AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2)
AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT AND THAT
IT IS HOLDING THIS BOND FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION OR (3) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Bond or
Definitive Bond issued pursuant to subparagraphs (b)(ii),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii) and (e)(iii)
of this Section 1.08 (and all Bonds of the 2010 Second
Series issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Bond Legend. Each Global Bond shall bear a legend
in substantially the following form (unless otherwise
specified by the Depository):
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THIS GLOBAL BOND IS HELD BY THE DEPOSITORY
(AS DEFINED IN THE MORTGAGE AND SUPPLEMENTAL
INDENTURE GOVERNING THIS BOND) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 1.08 OF THE
SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL
BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 1.08(a) OF THE
SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.06 OF THE
MORTGAGE AND (IV) THIS GLOBAL BOND MAY BE
TRANSFERRED AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
(g) Cancellation and/or Adjustment of Global Bonds. At such time as
all beneficial interests in a particular Global Bond have been
exchanged for Definitive Bonds or a particular Global Bond has been
redeemed, repurchased or cancelled in whole and not in part, each such
Global Bond shall be returned to or retained and cancelled by the
Trustee in accordance with Section 2.06 of the Mortgage. At any time
prior to such cancellation, if any beneficial interest in a Global
Bond is exchanged for or transferred to a person who
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will take delivery thereof in the form of a beneficial interest in
another Global Bond or for Definitive Bonds, the principal amount of
Bonds of the 2010 Second Series represented by such Global Bond shall
be reduced accordingly and an endorsement shall be made on such Global
Bond by the Trustee or by the Depository at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is
being exchanged for or transferred to a person who will take delivery
thereof in the form of a beneficial interest in another Global Bond,
the principal amount of Bonds of the 2010 Second Series represented by
such other Global Bond shall be increased accordingly and an
endorsement shall be made on such Global Bond by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) The Bonds of the 2010 Second Series shall be transferable
only upon the surrender of a Bond of the 2010 Second Series for
registration of transfer and in compliance with this Section
1.08. When a bond is presented to the Trustee, as registrar, with
a request to register a transfer, the Trustee, as registrar,
shall register the transfer as requested if the requirements of
Section 8-401 of the Uniform Commercial Code and this Section
1.08 are met. When Bonds of the 2010 Second Series are presented
to the Trustee, as registrar, with a request to exchange them for
an equal principal amount of Global Bonds or Definitive Bonds of
other denominations, the Trustee, as registrar, shall make the
exchange as requested if the same requirements are met.
(ii) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Bonds and Definitive Bonds upon receipt of an authentication
order from the Company in accordance with the Indenture.
(iii) The Trustee, as registrar, shall retain copies of all
certificates, opinions of counsel, notices and other written
communications received pursuant to this Section 1.08 in
accordance with its customary procedures. The Company shall have
the right to inspect and make copies of all such certificates,
opinions of counsel, notices or other written communications at
any reasonable time upon the giving of reasonable written notice
to the Trustee, as registrar.
(iv) All Global Bonds and Definitive Bonds issued upon any
registration of transfer or exchange of Global Bonds or
Definitive Bonds shall be the valid obligations of the Company,
evidencing the same indebtedness, and entitled to the same
benefits under the Indenture, as the Global Bonds or Definitive
Bonds surrendered upon such registration of transfer or exchange.
(v) Prior to due presentment for the registration of a transfer
of any Bond of the 2010 Second Series, the Trustee, any agent and
the Company may deem and treat the person in whose name any Bond
of the 2010 Second Series is registered as the absolute owner for
the purpose of receiving payment of principal of, premium, if
-26-
any, and interest, payment of the redemption price and for all
other purposes, and none of the Trustee, any agent or the Company
shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Bonds and Definitive
Bonds in accordance with the provisions of the Mortgage and this
Supplemental Indenture.
(vii) All certifications, certificates and opinions of counsel
required to be submitted to the Trustee, as registrar, pursuant
to this Section 1.08 to effect a registration of transfer or
exchange may be submitted by facsimile, with an original of such
document to be sent promptly thereafter.
(viii) Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Trustee, as
registrar, pursuant to this Section 1.08, the registrar's duties
shall be limited to confirming that any such certifications and
certificates delivered to it are substantially in the form of
Exhibits A, B and C attached hereto. The Trustee, as registrar,
shall not be responsible for confirming the truth or accuracy of
representations made in any such certifications or certificates.
SECTION 1.09. CUSIP, ISIN or Common Code Numbers. The Company in
issuing the Bonds of the 2010 Second Series may use "CUSIP," "ISIN" or "Common
Code" numbers (if then generally in use) and, if so, the Trustee shall use such
numbers in notices of redemption or repurchase as a convenience to holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the bonds or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the other identification numbers printed on the bonds, and any
such redemption or repurchase shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee of any change in
"CUSIP," "ISIN" or "Common Code" numbers.
SECTION 1.10. Duration of Article One. This Article One shall be of
force and effect only so long as any Bonds of the 2010 Second Series are
outstanding.
ARTICLE TWO.
TRUSTEE.
SECTION 2.01. Duties of Trustee. The Trustee hereby accepts the trust
hereby created. The Trustee undertakes, prior to the occurrence of an event of
default and after the curing of all events of default which may have occurred,
to perform such duties and only such duties as are specifically set forth in the
Original Indenture as heretofore and hereby supplemented and modified, on and
subject to the terms and conditions set forth in the Original Indenture as so
supplemented and modified, and in case of the occurrence of an event of default
(which has not been cured) to exercise such of the rights and powers vested in
it by the Original Indenture as so supplemented and modified, and to use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
-27-
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds of the 2010 Second Series issued hereunder or the due execution thereof by
the Company. The Trustee shall be under no obligation or duty with respect to
the filing, registration or recording of this Supplemental Indenture or the
re-filing, re-registration or re-recording thereof. The recitals of fact
contained herein or in the Bonds of the 2010 Second Series (other than the
Trustee's authentication certificate) shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Date of this Supplemental Indenture. Although this
Supplemental Indenture, for convenience and for the purpose of reference, is
dated October 1, 2002, the actual date of execution by the Company and by the
Trustee is as indicated by their respective acknowledgments hereto annexed.
SECTION 3.02. Relation to Original Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture as heretofore supplemented and modified, and as supplemented
and modified hereby, the Original Indenture as heretofore supplemented and
modified is in all respects ratified and confirmed, and the Original Indenture
as heretofore and hereby supplemented and modified shall be read, taken and
construed as one and the same instrument. All terms used in this Supplemental
Indenture shall be taken to have the same meaning as in the Original Indenture
except in cases where the context clearly indicates otherwise.
SECTION 3.03. Invalid, Illegal or Unenforceable Provisions. In case any
one or more of the provisions contained in this Supplemental Indenture or in the
Bonds of the 2010 Second Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture, but this Supplemental Indenture shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein.
SECTION 3.04. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts, or as many of
them as the Company and the Trustee shall preserve undestroyed, shall together
constitute but one and the same instrument.
SECTION 3.05. Conflicting Provision. If any provision of this
Supplemental Indenture conflicts with another provision of the Mortgage required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Indenture) by any of the
provisions of said Act, such required provision shall control.
SECTION 3.06. Headings. Article and Section headings and the table of
contents used herein are for convenience of reference only, are not part of this
Supplemental Indenture
-28-
and are not to affect the construction of, or to be taken into consideration in
interpreting, this Supplemental Indenture.
SECTION 3.07. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO THE CREATION OR ENFORCEMENT OF
ANY LIEN ON REAL PROPERTY CREATED BY THE INDENTURE, WHICH SHALL BE GOVERNED BY
THE LAWS OF THE STATE IN WHICH SUCH REAL PROPERTY IS LOCATED.
-29-
IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Senior Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA has caused this Supplemental Indenture to be signed in
its corporate name by one of its Vice Presidents or one of its Assistant Vice
Presidents or one of its Corporate Trust Officers and its corporate seal to be
hereunto affixed and attested by one of its Corporate Trust Officers, all as of
the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President, Finance, Chief
Financial Officer and Treasurer
Attest: /s/ J. Xxxx Xxxxxxx
--------------------
Title: Assistant Secretary
(Seal)
HSBC BANK USA, as Trustee
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name:
Title:
Attest: /s/ Xxxxx X. Xxxxxx
--------------------
Title:________________________
(Seal)
-00-
Xxxxx xx Xxxxxx )
) ss.
County of Multnomah )
The foregoing instrument was acknowledged before me on this 10th day
of October, 2002 by Xxxxx X. Xxxx, an Executive Vice President, Finance, Chief
Financial Officer and Treasurer of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, on behalf of said corporation.
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Notary Public for Oregon
My Commission Expires 9/5/04
[NOTARIAL SEAL]
-00-
Xxxxx xx Xxx Xxxx )
) ss.
County of New York )
The foregoing instrument was acknowledged before me on this 10th day
of October, 2002 by Xxxxxxx X. Xxxx, an Asst. Vice President of HSBC BANK USA, a
New York banking corporation and trust company, on behalf of said corporation.
/s/ Xxxxxx Marhowslu
-----------------------------
Notary Public, State of New York
No. 24-01MA476166
My Commission Expires 11/30/02
[NOTARIAL SEAL]
-32-
State of Oregon )
) ss.
County of Multnomah )
Xxxxx X. Xxxx and J. Xxxx Xxxxxxx, an Executive Vice President,
Finance, Chief Financial Officer and Treasurer and Assistant Secretary,
respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, the
mortgagor in the foregoing mortgage named, being first duly sworn, on oath
depose and say that they are the officers above named of said corporation and
that this affidavit is made for and on its behalf by authority of its Board of
Directors and that the aforesaid mortgage is made by said mortgagor in good
faith, and without any design to hinder, delay or defraud creditors.
Subscribed and sworn to before me this 10th day of October, 2002.
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Notary Public for Oregon
My Commission Expires 9/5/04
[NOTARIAL SEAL]
-33-
EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
8-1/8% FIRST MORTGAGE BONDS DUE 2010 (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fiftieth Supplemental Indenture dated as of October 1, 2002 between the Issuer
and the Trustee (the "Supplemental Indenture," and together with the Original
Indenture, the "Indenture"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________ (the "Transferor") owns and proposes to transfer the
Bonds or interests in Bonds specified in Annex A hereto, in the principal amount
of $___________ (the "Transfer"), to __________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest in a Global Bond or a Definitive Bond is being transferred to a person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest in a Global Bond or such Definitive Bond for its own
account, or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any relevant State of the United
States. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Bond will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Global Bonds and/or the Definitive Bonds and in the
Indenture and with the Securities Act.
2. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond pursuant to Regulation S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts (as defined in Rule 902 of Regulation
S) have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period (as provided in Rule 904 of
Regulation S), the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an initial purchaser) and the
interest transferred will be held immediately thereafter through Euroclear or
Clearstream. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
in a Global Bond or Definitive Bond will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Global Bonds
and/or the Definitive Bonds and in the Indenture and with the Securities Act.
3. [] Check and complete if Transferee will take delivery of a
beneficial interest in a Global Bond or a Definitive Bond pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in the Global Bonds and the Definitive Bonds
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any relevant State of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [] Such Transfer is being effected to the Company or a subsidiary
thereof; or
(b) [] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Global Bond or Definitive Bond and
the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit C to
the Indenture (attached hereto) and (2) a written opinion of legal counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification and provided to the Company,
which has confirmed its acceptability), to the effect that such Transfer is
in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest in the Global Bond
or Definitive Bond will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Global Bond or the Definitive Bonds
and in the Indenture and the Securities Act.
4. [] Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Bond or of an Unrestricted Definitive Bond.
(a) [] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any
relevant State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest in a Global Bond or
Definitive Bond will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Global Bonds, on
the Definitive Bonds and in the Indenture.
(b) [] Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Bond will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Global Bonds, on the Definitive Bonds and
in the Indenture.
(c) [] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest in a Global Bond or Definitive Bond will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Global Bonds or Definitive Bonds and in the Indenture. This
certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
______________________
[Insert Name of Transferor]
By:___________________
Name:
Title:
Dated:____________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [] a beneficial interest in a Global Bond (CUSIP ______), or
(b) [] a Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [] a beneficial interest in the:
(i) [] Global Bond (CUSIP ______), or
(ii) [] Unrestricted Global Bond (CUSIP ______); or
(b) [] a Definitive Bond; or
(c) [] an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
8-1/8% FIRST MORTGAGE BONDS DUE 2010 (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fiftieth Supplemental Indenture dated as of October 1, 2002 between the Issuer
and the Trustee (the "Supplemental Indenture," and together with the Original
Indenture, the "Indenture"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Bonds or
beneficial interests in the Bonds specified herein, in the principal amount of
$____________ (the "Exchange"). In connection with the Exchange, the Owner
hereby certifies that:
1. Exchange of Definitive Bonds or Beneficial Interests in a Global Bond
for Unrestricted Definitive Bonds or Beneficial Interests in an Unrestricted
Global Bond
(a) [] Check if Exchange is from beneficial interest in a Global Bond
to beneficial interest in an Unrestricted Global Bond. In connection with the
Exchange of the Owner's beneficial interest in a Global Bond for a beneficial
interest in an Unrestricted Global Bond in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Bonds and pursuant to
and in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Bond is being acquired in compliance with any applicable
blue sky securities laws of any relevant State of the United States.
(b) [] Check if Exchange is from beneficial interest in a Global Bond
to Unrestricted Definitive Bond. In connection with the Exchange of the Owner's
beneficial interest in a Global Bond for an Unrestricted Definitive Bond, the
Owner hereby certifies (i) the Unrestricted Definitive Bond is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Bond is being acquired in compliance with
any applicable blue sky securities laws of any relevant State of the United
States.
(c) [] Check if Exchange is from Definitive Bond to beneficial
interest in an Unrestricted Global Bond. In connection with the Owner's Exchange
of a Definitive Bond for a beneficial interest in an Unrestricted Global Bond,
the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Definitive Bonds and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
relevant State of the United States.
(d) [] Check if Exchange is from Definitive Bond to Unrestricted
Definitive Bond. In connection with the Owner's Exchange of a Definitive Bond
for an Unrestricted Definitive Bond, the Owner hereby certifies (i) the
Unrestricted Definitive Bond is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Definitive Bonds and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Bond is being acquired in compliance with any applicable blue sky securities
laws of any relevant State of the United States.
2. Exchange of Definitive Bonds or Beneficial Interests in Global Bonds for
Definitive Bonds or Beneficial Interests in Global Bonds
(a) [] Check if Exchange is from beneficial interest in a Global Bond
to Definitive Bond. In connection with the Exchange of the Owner's beneficial
interest in a Global Bond for a Definitive Bond with an equal principal amount,
the Owner hereby certifies that the Definitive Bond is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Definitive Bond issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Bond and in the Indenture and the
Securities Act.
(b) [] Check if Exchange is from Definitive Bond to beneficial
interest in a Global Bond. In connection with the Exchange of the Owner's
Definitive Bond for a beneficial interest in a Global Bond (only if the Owner is
a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A or if the Owner is Non-U.S.
person) the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any relevant State of
the United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Global Bond and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________
[Insert Name of Owner]
By:_____________________________________
Name:
Title:
Dated:____________
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attention: Issuer Services
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $150,000,000
principal amount of the 8-1/8% First Mortgage Bonds due 2010 (the "Bonds") of
Portland General Electric Company (the "Issuer").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between the Issuer and HSBC Bank USA (formerly
the Marine Midland Trust Company of New York), as trustee (the "Trustee"), as
such indenture has been amended from time to time by various supplemental
indentures (the "Original Indenture") and the Fiftieth Supplemental Indenture
dated as of October 1, 2002 between the Issuer and the Trustee (the
"Supplemental Indenture," and together with the Original Indenture, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
Upon transfer, the Bonds would be registered in the name of the new
beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are purchasing the Bonds for our own account, or for one or more
investor accounts for which we are acting as a fiduciary or agent, in each case
for investment, and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act, subject to any requirement
of law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and subject to
our or their ability to resell the Bonds pursuant to Rule 144A, Regulation S or
any exemption from registration available under the Securities Act.
2. We are an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act who is purchasing the
Bonds with a principal amount of at least $100,000 and, if the Bonds are to be
purchased for one or more accounts (the "investor accounts") for which we are
acting as fiduciary or agent, each such account is an institutional accredited
investor who is purchasing the Bonds with a principal amount of at least
$100,000. In the normal course of business or our investing activities, we
invest in or purchase securities similar to the Bonds and we have such knowledge
and experience in financial business matters that we are capable of evaluating
the merits and risks of purchasing the Bonds. We are aware that we (or any
investor account) may be required to bear the economic risk of an investment in
the Bonds for an indefinite period of time and we (or such investor account) are
able to bear such risk for an indefinite period.
3. We understand and agree that the offer and sale of the Bonds have
not been registered under the Securities Act and that such Bonds are being
offered only in a transaction not involving any public offering within the
meaning of the Securities Act, and that (A) if we decide to resell, pledge or
otherwise transfer such Bonds on which a legend setting forth these restrictions
appears, such Bonds may be resold, pledged or otherwise transferred
only (i) to the Issuer, (ii) in a transaction entitled to an exemption from
registration provided by Rule 144 under the Securities Act, (iii) so long as
such Bonds are eligible for resale pursuant to Rule 144A, to a person whom we
reasonably believe is a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or other transfer is being made in reliance on
Rule 144A, (iv) outside the United States in a transaction meeting the
requirements of Regulation S, (v) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel acceptable to the Issuer), in each case in accordance with any
applicable securities laws of any State of the United States or (vi) pursuant to
a registration statement which has been declared effective under the Securities
Act and (B) we will, and each subsequent holder is required to, notify any
purchaser of the Bonds from us or it of the resale restrictions referred to in
(A) above, if then applicable. We acknowledge that the foregoing restrictions
apply to holders of beneficial interest in the Bonds, as well as to holders of
the Bonds.
5. We understand that, on any proposed resale of any Bonds, we will be
required to furnish to the Trustee and the Issuer such certifications, legal
opinions and other information as the Trustee and the Issuer may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Bonds purchased by us will bear a
legend to the foregoing effect.
6. We acknowledge that the Issuer, the Trustee and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations
and agreements and agree that if any of the foregoing acknowledgments,
representations or agreements are no longer accurate, we shall promptly notify
the Issuer and the Trustee. If we are acquiring the Bonds as a fiduciary or
agent for one or more investor accounts, we represent that we have sole
investment discretion with respect to each such account and we have full power
to make the foregoing acknowledgments, representations and agreements on behalf
of each account and that each such investor account is eligible to purchase the
Bonds.
7. The Issuer 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 proceeding or official inquiry
with respect to the matters covered hereby.
________________________________
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated: _____________, _____
