Exhibit T3C-3
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Electric Generation LLC, as Issuer
and
U.S. Bank, N.A., as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of , 2002
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SUPPLEMENT TO INDENTURE DATED AS OF , 2002
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*Note: The "QUIDS Notes" will be issued under this supplemental indenture.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................1
ARTICLE II ESTABLISHMENT OF SENIOR NOTES................................................3
SECTION 201 Designation of Series.....................................................3
SECTION 202 Form of Senior Notes......................................................3
SECTION 203 Limit on Amount of Series; Authorized Denominations.......................3
SECTION 204 Physical Securities and Global Securities; Appointment of Depositary
for Global Securities..................................................3
SECTION 205 [Sinking Fund]............................................................4
SECTION 206 Other Terms of Senior Notes...............................................4
ARTICLE III REDEMPTION OF THE SENIOR NOTES...............................................4
SECTION 301 [Mandatory Sinking Fund Redemption].......................................4
SECTION 302 Optional Redemption.......................................................4
ARTICLE IV MISCELLANEOUS................................................................5
SECTION 401 Application of Second Supplemental Indenture..............................5
SECTION 402 Effective Date............................................................5
SECTION 403 Counterparts..............................................................5
EXHIBIT A FORM OF SENIOR NOTES.......................................................A-1
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SECOND SUPPLEMENTAL INDENTURE, dated as of , 2002 (this "Second
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Supplemental Indenture") by and between Electric Generation LLC, a California
limited liability company (herein called the "Issuer"), and U.S. Bank, N.A., a
national banking association organized and existing under the laws of the United
States of America, as Trustee under the Indenture (as hereinafter defined)
(herein called the "Trustee").
RECITALS OF THE ISSUER
The Issuer and the Trustee are parties to that certain Indenture dated as
of , 2002 (the "Original Indenture," and together with all
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indentures supplemental thereto, the "Indenture") providing for the issuance by
the Issuer of Securities from time to time.
Under the Original Indenture, the Issuer is authorized to issue unlimited
series of Securities and to establish a series of Securities at any time in
accordance with the provisions of the Original Indenture, and the terms of such
series may be described by a supplemental indenture executed by the Issuer and
the Trustee.
Pursuant to Section 301 of the Original Indenture, the Issuer and the
Trustee deem it advisable to enter into this Second Supplemental Indenture for
the purposes of establishing the terms of a [second] series of Securities.
The execution and delivery of this Second Supplemental Indenture has been
authorized by a resolution of the Board of the Issuer.
Concurrent with the execution hereof, the Issuer has caused its counsel to
deliver to the Trustee an Opinion of Counsel.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Issuer, in accordance with its terms, have been done.
Now, Therefore, the Issuer and the Trustee agree as follows for the benefit
of each other and the equal and proportionate benefit of all Holders of the
Senior Notes (as hereinafter defined), as follows:
ARTICLE I
DEFINITIONS
The following definitions are hereby established for purposes of this
Second Supplemental Indenture (capitalized terms used herein but not defined
have the meaning set forth in the Original Indenture) shall have the meanings
set forth in this Second Supplemental Indenture only for purposes of this Second
Supplemental Indenture:
"Adjusted Treasury Rate" means, with respect to any Redemption Date:
(a) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519) Selected Interest Rates" or any
successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the Remaining
Life, yields for the two published maturities most closely corresponding to
the Comparable Treasury issue will be determined and the Adjusted Treasury
Rate will be interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month); or
(b) if such release (or any successor publication) is not published
during the week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date.
The Adjusted Treasury Rate will be calculated on the third Business Day
preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term to the stated maturity date of the Senior Notes to be
redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Senior Notes to be redeemed
(the "Remaining Life").
"Comparable Treasury Price" means (a) the average of Reference
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Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (b) if the Independent
Investment Banker obtains fewer than such Reference Treasury Dealer
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Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Issuer.
"Interest Payment Date" with respect to the Senior Notes shall mean ,
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, and of each year, commencing , 20 .
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"Reference Treasury Dealer" means (a) and
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their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government Securities dealer (a "Primary
Treasury Dealer"), the Issuer will substitute any Primary Treasury Dealer, and
(b) any other Primary Treasury Dealers selected by the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
2
"Remaining Scheduled Payments" means, with respect to each Senior Note that
the Issuer is redeeming, the remaining scheduled payments of the principal and
interest that would be due after the related Redemption Date if such Senior Note
were not redeemed. However, if the Redemption Date is not a scheduled Interest
Payment Date with respect to that Senior Note, the amount of the next succeeding
scheduled interest payment on that Senior Note will be reduced by the amount of
interest accrued on such Senior Note to the Redemption Date.
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The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Second Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE II
ESTABLISHMENT OF SENIOR NOTES
SECTION 201 Designation of Series.
Pursuant to the terms hereof and Section 301 of the Original Indenture, the
Issuer hereby establishes a separate series of Securities designated as "[__%
Senior Notes due 20__]" (the "Senior Notes").
SECTION 202 Form of Senior Notes.
The Senior Notes shall be substantially in the form set forth in Exhibit A
attached hereto, which is incorporated herein and made a part hereof. Senior
Notes issued in the form of Global Securities shall be substantially in the form
of Exhibit A attached hereto (including the Global Securities legend). Senior
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Securities legend).
SECTION 203 Limit on Amount of Series; Authorized Denominations.
The aggregate principal amount of Senior Notes which may be authenticated
and delivered under this Second Supplemental Indenture may not exceed
$300,000,000 at any time, except as permitted by Section 306 of the Indenture.
Senior Notes are issuable only in registered form without coupons in
denominations of $25.00 and any integral multiple thereof.
SECTION 204 Physical Securities and Global Securities; Appointment of Depositary
for Global Securities.
In accordance with the terms of the Plan and subject to the next sentence
of this Section 205, Senior Notes shall be issued in the form of one or more
permanent Global Securities as provided in Article Two of the Original Indenture
and Section 202 of this First Supplemental Indenture and deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for the Depositary,
duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. Each holder of an allowed claim under the Plan entitled to receive
Senior Notes pursuant to the Plan who has complied with the terms of the Plan
but is not eligible to hold
3
a Global Security shall be issued Senior Notes in definitive form, as provided
in Section 202 of this First Supplemental Indenture.
The Issuer hereby appoints The Depository Trust Company ("DTC"), initially,
to act as the Depositary with respect to Senior Notes that are Global
Securities, and such Senior Notes shall initially be registered in the name of
Cede & Co., as the nominee of DTC.
The Trustee is hereby authorized and requested to execute and deliver a
Letter of Representation relating to the Senior Notes that are Global Securities
and, in connection with any successor nominee for DTC or any successor
depositary, enter into comparable arrangements, and shall have the same rights
with respect to its actions thereunder as it has with respect to its actions
under the Indenture.
SECTION 205 [Sinking Fund.]
[Insert if applicable: The Issuer covenants and agrees that, on or before
in each year beginning with the year , so long as any of the Senior
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Notes are Outstanding, it will pay to the Trustee, as a sinking fund payment
("Mandatory Sinking Fund Payment") referred to in Section 1201 of the Original
Indenture, the amount of $ , together with a payment at maturity of
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$ on , 20 , in respect of the Senior Notes.]
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SECTION 206 Other Terms of Senior Notes.
The other terms of the Senior Notes shall be as expressly set forth in
Article 3 hereof and Exhibit A hereto.
ARTICLE III
REDEMPTION OF THE SENIOR NOTES
SECTION 301 [Mandatory Sinking Fund Redemption.]
[Insert if applicable: Subject to the terms and conditions of the Original
Indenture, $ aggregate principal amount of Senior Notes are subject to
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redemption on in each year, beginning with the year , from Mandatory
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Sinking Fund Payments made by the Issuer pursuant to Section 205 hereof, at a
Redemption Price equal to 100% of such principal amount of Senior Notes being
redeemed, plus accrued interest, without premium.]
SECTION 302 Optional Redemption.
Subject to the terms and conditions of the Original Indenture, the Senior
Notes are redeemable at the option of the Issuer in whole at any time or in part
from time to time at a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Senior Notes to be redeemed;
or
(b) as determined by an Independent Investment Banker, the sum of the
present values of the Remaining Scheduled Payments on the Senior Notes to
be so redeemed (not
4
including any portion of such payments of interest accrued to the
Redemption Date) discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus basis points,
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plus, in either of the above cases, accrued and unpaid interest on the principal
amount of the Senior Notes being redeemed to the Redemption Date.
Redemption of the Senior Notes at the election of the Issuer as permitted
by this Second Supplemental Indenture shall be made in accordance with Article
XI of the Original Indenture.
ARTICLE IV
MISCELLANEOUS
SECTION 401 Application of Second Supplemental Indenture.
Each and every term and condition contained in this Second Supplemental
Indenture that modifies, amends or supplements the terms and conditions of the
Indenture shall apply only to the Senior Notes created hereby and not to any
future series of Securities established under the Indenture. Except as
specifically amended and supplemented by, or to the extent inconsistent with,
this Second Supplemental Indenture, the Indenture shall remain in full force and
effect and is hereby ratified and confirmed.
SECTION 402 Effective Date.
This Second Supplemental Indenture shall be effective as of the date first
above written and upon the execution and delivery hereof by each of the parties
hereto.
SECTION 403 Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first above written.
ELECTRIC GENERATION LLC
By:
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U.S. BANK, N.A., as Trustee
By:
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6
EXHIBIT A
[FORM OF SENIOR NOTES]
[Form of Face of Security]
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[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
ELECTRIC GENERATION LLC
[___% SENIOR NOTES DUE 20__]
No. Principal Amount: $
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CUSIP No:
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ELECTRIC GENERATION LLC, a limited liability company duly organized and
existing under the laws of the State of California (herein called the "Issuer,"
which term includes any successor Persons under the Indenture hereinafter
referred to), for value received, hereby promises to pay
to or registered assigns, the principal sum of
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Dollars on , 20 , and
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to pay interest thereon from , 20 or from the most recent Interest
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Payment Date to which interest has been paid or duly provided for, quarterly
on each , , and in each year (each,
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an "Interest Payment Date"), commencing , 20 , at the rate of %
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per annum until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the 15th day next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Issuer maintained for that
purpose in , , or, at the option of the Issuer, payment of
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interest may be made by check mailed to the Holders at their addresses set forth
in the Security Register; provided that payment by wire transfer of immediately
available funds will be required with respect to the principal of and interest,
and premium, on [all Securities that are Global Securities and] all [other]
Securities the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent if such Holders shall be registered Holders
of at least $ in principal amount of Securities. Such payment shall be
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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.
A-2
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Issuer has caused this instrument to be duly
executed.
Dated:
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ELECTRIC GENERATION LLC
By
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By
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. BANK, N.A.,
As Trustee
By ,
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Authorized Signatory
A-3
[Form of Reverse of Security]
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This Security is one of a duly authorized issue of securities of the Issuer
(herein called the "Securities"), issued under an Indenture, dated as of
, 2002, as heretofore supplemented and as supplemented by the Second
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Supplemental Indenture dated , 2002 (as so supplemented and as may
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be further supplemented, herein called the "Indenture"), between the Issuer and
U.S. Bank, N.A., as Trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof limited in aggregate principal amount to $300,000,000.
[Insert if applicable: Subject to the terms and conditions of the Original
Indenture, $ aggregate principal amount of Senior Notes are subject to
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redemption on in each year, beginning with the year , from Mandatory
----- ----
Sinking Fund Payments made by the Issuer pursuant to Section 205 hereof, at a
Redemption Price equal to 100% of such principal amount of Senior Notes being
redeemed, plus accrued interest, without premium.]
Subject to the terms and conditions of the Original Indenture, the Senior
Notes are redeemable at the option of the Issuer in whole at any time or in part
from time to time at a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Senior Notes to be redeemed;
or
(b) as determined by an Independent Investment Banker, the sum of the
present values of the Remaining Scheduled Payments on the Senior Notes to
be so redeemed (not including any portion of such payments of interest
accrued to the Redemption Date) discounted to the Redemption Date on a
[semiannual] basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus basis points,
---
plus, in either of the above cases, accrued and unpaid interest on the principal
amount of the Senior Notes being redeemed to the Redemption Date.
Interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
Notice of redemption will be mailed by first class mail at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent prior
to or on the Redemption Date, immediately after such Redemption Date interest
ceases to accrue on such Securities or portions thereof. Securities in
denominations larger than $25.00 in principal amount may be redeemed in part but
only in integral multiples of $25.00.
A-4
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions allowing for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal of, and accrued interest on the Securities of this series to the date
of declaration, to be due and payable immediately.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected, voting as a
single class. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities of each series
affected, on behalf of the Holders of all Securities of such series, voting as a
single class, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee security or indemnity satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
A-5
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Issuer in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25.00 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are not defined herein shall have the
meanings assigned to them in the Indenture.
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
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Date:
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Your signature:
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(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
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SIGNATURE GUARANTEE:
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Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to, or
in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
A-7
