EXHIBIT 4.4
THIS INSTRUMENT PREPARED BY AND
AFTER RECORDING SHOULD BE MAILED TO:
Xxxxx X. Xxxxxx
Counsel
The Peoples Gas Light and
Coke Company
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
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THE PEOPLES GAS LIGHT AND COKE COMPANY
TO
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 2003
FIRST AND REFUNDING MORTGAGE 4% BONDS, SERIES MM-1 AND SERIES MM-2
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EXHIBIT 4.4
TABLE OF CONTENTS
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Parties ............................................................................. 1
Recitals
Status of Mortgage ......................................................... 1
First and Refunding Mortgage Bonds
issued and outstanding ............................................... 2
Basis for issuance of $50,000,000
Series MM Bonds ...................................................... 2
Reservation of right to amend the Mortgage ................................. 2
Amendment of Article X of the Mortgage ..................................... 3
Supplemental Indenture authorized by Directors ............................. 3
ARTICLE I
FIRST AND REFUNDING MORTGAGE 4% BONDS,
SERIES MM
Sec. 1: Designation, amount limited to
$50,000,000, maturity and
interest rate ................................................ 5
Place and medium of interest and
principal payments. .......................................... 5
Sec. 2: Form of bonds .............................................................. 6
Denominations of registered bonds
without coupons .............................................. 6
Date of bonds ........................................................ 6
Sec. 3: Interdenominational exchanges of
registered bonds ............................................. 7
Sec. 4: Execution, authentication and issue of
Series MM Bonds .............................................. 7
Sec. 5: Redemption of Series MM Bonds
by Company ................................................... 7
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Sec. 6: Notice of Redemption ....................................................... 8
Sec. 7: Legend on Series MM Bonds .................................................. 9
Sec. 8: Definitions ................................................................ 10
Sec. 9: Payments, notices and actions due on
Saturdays, Sundays and holidays
to take place on next succeeding
Business Day ......................................................... 13
Sec. 10: Reservation of right to amend
the Mortgage ................................................. 13
Sec. 11: Transfer and Exchange ..................................................... 15
ARTICLE II
COVENANTS OF THE COMPANY
Sec. 1: Company each year shall charge against income and place
to credit of Depreciation Reserve Account the greater of
$1,550,000 or 2.5% of the sum of the aggregate principal
amount of all indebtedness of the Company secured by the
Mortgage and liens superior to the Mortgage ................................ 29
Company after issuing any Series MM Bonds shall not request the
Trustee to:
Authenticate any bonds under Mortgage pursuant to Sections 2,
4 or 5 of Article III or pay cash to the Company pursuant to
Section 6 of Article III on account of transactions effected prior
to January 1, 1951 ................................................... 30
Authenticate any series of bonds or pay any moneys to Company
on account of payment of any Refunding Mortgage 5% bonds on
or after January 1, 1944 ............................................. 31
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Company shall not request the Trustee to
authenticate bonds of any series or to
pay to the Company any cash deposited
with or received by the Trustee, unless it
delivers to the Trustee a certificate
signed by the President or an Executive
or other Vice President or Chief Financial Officer
and Treasurer or Assistant Treasurer containing
specified information ................................................ 31
Company shall not obtain authentication of
bonds or payment of cash in excess of
75% of amount shown on such certificate .............................. 34
Explanation of terms--
Mortgage and Prior Lien Debt of Company .............................. 34
Net Earnings ......................................................... 34
Permanent Property ................................................... 36
Original Cost ........................................................ 36
Company to furnish Trustee in connection
with authentication of bonds pursuant
to Section 5 of Article III or payment
of cash pursuant to Section 6 of
Article III or of Article IX of the Mortgage: ........................ 36
Opinion of counsel that
Company has acquired good title to
property ............................................................. 37
Certificate of President or any
Executive or other Vice President
or Chief Financial Officer and also by
the Treasurer or an Assistant Treasurer certifying
that the property involved is
"permanent property" ................................................. 37
Company shall not hereafter issue any bonds
under any underlying mortgage ........................................ 37
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Company not to request Trustee to authenticate
bonds or to pay to it cash on account
of bonds purchased or redeemed through
operation of, or bonds deposited in,
the sinking funds provided for in
supplemental indentures .............................................. 37
In event of acquisition of substantially
all properties subject to lien of
Mortgage by federal, state or municipal
authority, Company shall be deemed to
have requested Trustee to redeem all
bonds of all series under Mortgage ................................... 38
Classifying of "property replaced or retired" .............................. 38
If Company consolidates or merges with
another corporation, successor must
assume payment of principal and
interest on all bonds outstanding
under Mortgage ....................................................... 38
Sec. 2: After-acquired property shall be
subject to lien of Mortgage .................................. 38
Sec. 3: Company to furnish certificates,
mortgages, deeds, opinions of
counsel to Trustee within sixty
(60) days after acquiring land,
plants or interests in lands or
plants the aggregate cost of
which shall equal or
exceed $500,000 .............................................. 39
Sec. 4: Company covenants that upon cancellation
of any "prior lien" it shall cause
all cash or obligations held by
trustee of such "prior lien" to be
paid over to Trustee. ........................................ 41
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ARTICLE III
AMENDMENT OF MORTGAGE
Sec. 1. Amendment of Section 1 of Article X of Mortgage ............................ 41
ARTICLE IV
MISCELLANEOUS
Sec. 1: Trustee's Acceptance ....................................................... 42
Sec. 2: Supplemental Indenture executed
pursuant to Article XVI of Mortgage .......................... 42
Sec. 3: All covenants and conditions by or
on behalf of Company to bind its
successors and assigns ....................................... 42
Sec. 4: Supplemental Indenture to become
effective only from time of its
actual execution and delivery
by the Company and Trustee ................................... 42
Execution in counterparts ........................................................... 42
Attestation clause by Company ....................................................... 43
Signature by Company ................................................................ 43
Attestation clause by Trustee ....................................................... 44
Signature by Trustee ................................................................ 44
Acknowledgment by Company ........................................................... 45
Acknowledgment by Trustee ........................................................... 34
Exhibit A Form of Series MM-1 Registered Bond Without Coupon
Exhibit B Form of Series MM-2 Registered Bond Without Coupon
Exhibit C Form of Certificate of Transfer
Exhibit D Form of Certificate of Exchange
Exhibit E Form of Regulation S Temporary Global Bond
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This Supplemental Indenture, dated as of February 15, 2003, made and
entered into by and between THE PEOPLES GAS LIGHT AND COKE COMPANY, a
corporation organized and existing under the laws of the State of Illinois
(hereinafter called the "Company") and U.S. Bank National Association
(hereinafter called the "Trustee"), a corporation organized and existing under
the laws of the United States of America and successor to Illinois Merchants
Trust Company, as trustee under the indenture of Chicago By-Product Coke Company
to said Illinois Merchants Trust Company, as trustee, dated January 2, 1926,
WITNESSETH:
WHEREAS, Chicago By-Product Coke Company, a corporation organized and
existing under the laws of the State of Delaware, heretofore gave its mortgage
in the form of an indenture (hereinafter called the "Original Mortgage") to
Illinois Merchants Trust Company, as trustee, under date of the second day of
January, 1926; and
WHEREAS, the Company executed and delivered to said Illinois Merchants
Trust Company, as trustee under the Original Mortgage, an indenture bearing date
the first day of March, 1928, whereby, among other things, the Company assumed
and agreed to pay the principal and interest of all bonds issued or to be issued
under the Original Mortgage and secured thereby, and to perform and fulfill all
of the terms, covenants, and conditions of the Original Mortgage binding upon
said Chicago By-Product Coke Company, and in and by said indenture the Company
subjected to the lien of the Original Mortgage, subject to the existing liens
permitted by Section 2 of Article XIV of the Original Mortgage but with
statements required by said Section 2 with regard to such existing liens, all of
the property then owned by the Company or thereafter acquired by it (excepting
such of its property as the Company was by said Section 2 of Article XIV of the
Original Mortgage expressly authorized to reserve from the lien of the Original
Mortgage); and
WHEREAS, by virtue of all the things done as in the next preceding
paragraph recited, the Company has become the successor corporation under the
Original Mortgage, subject to all the terms, conditions and restrictions
thereof; and
WHEREAS, thereafter the Company has made, executed and delivered other
indentures supplemental to the Original Mortgage, of which the indentures
supplemental to the Original Mortgage delivered to U.S. Bank National
Association, as Trustee, successor to Illinois Merchants Trust Company, as
Trustee under the Original Mortgage, dated, respectively, May 20, 1936, March
10, 1950, as of June 1, 1951, as of August 15, 1967, as of September 15, 1970,
as of March 1, 1985, as of April 1, 1993, as of December 1, 1993, as of December
1, 1993, as of June 1, 1995, as of March 1, 2000, as of March 1, 2000, as of
March 1, 2000, as of March 1, 2000, as of February 1, 2003 and as of February 1,
2003 are wholly or partially in full force and effect (said Original Mortgage,
and said Indenture dated March 1, 1928, as so supplemented and amended, being
collectively called the "Mortgage", and said Mortgage, as supplemented by this
Supplemental Indenture, being collectively called the "Mortgage as
supplemented"); and
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WHEREAS, all bonds which have heretofore been issued and outstanding under
the Mortgage have been retired and cancelled, except that as of December 31,
2002, there were bonds of the following series outstanding in the aggregate
principal amounts indicated below (the Series X bonds listed below have been
called for redemption in full on March 14, 2003 and the Series XX xxxxx listed
below have been called for redemption in full on March 27, 2003):
Aggregate
Bonds Due Date Principal Amount
------------------- -------------------- ----------------
Series X March 1, 2015 $ 50,000,000
Series CC May 1, 2003 $ 75,000,000
Series DD December 1, 2023 $ 75,000,000
Series EE December 1, 2023 $ 27,000,000
Series FF June 1, 2025 $ 50,000,000
Series GG March 1, 2030 $ 50,000,000
Series HH March 1, 2030 $ 50,000,000
Series II March 1, 2030 $ 37,500,000
Series JJ March 1, 2030 $ 37,500,000
Series KK February 1, 2033 $ 50,000,000
Series LL February 1, 2033 $ 50,000,000
; and
WHEREAS, it is provided in Article III of the Mortgage that bonds of any
series may from time to time be issued by the Company under the Mortgage in a
principal amount equal to 75% of expenditures made for the acquisition of any
permanent property as defined in the Mortgage or upon the deposit of cash with
the Trustee equal to the aggregate principal amount of bonds whose
authentication and delivery is then applied for; and
WHEREAS, it is provided in Article III of the Mortgage that bonds of any
series may from time to time be issued by the Company under the Mortgage for or
on account of the acquisition and cancellation, or of the payment, cancellation,
redemption or other discharge, at, before or after maturity, of an equal
aggregate principal amount of bonds of any one or more other series theretofore
authenticated under any of the provisions of the Mortgage and which shall have
been or shall be outstanding; and
WHEREAS, the Company has duly determined to create two additional series of
its bonds to be issued under the Mortgage as supplemented designated "The
Peoples Gas Light and Coke Company First and Refunding Mortgage 4% Bonds, Series
MM-1" (herein sometimes referred to as "bonds of Series MM-1") and The Peoples
Gas Light and Coke Company First and Refunding Mortgage 4% Bonds, Series MM-2"
(herein sometimes referred to as "bonds of Series MM-2" or "Exchange
Bonds") (together, the bonds of Series MM-1 and the bonds of Series MM-2 are
referred to as the "bonds of
2
Series MM") and to issue an aggregate of $50,000,000 (that is $50,000,000 for
each of the bonds of Series MM-1 and bonds of Series MM-2) principal amount of
said bonds all of which bonds shall be fully registered without coupons; and
WHEREAS, the Company desires to reserve the right to amend the Mortgage
without any consent or other action by holders of the bonds of Series MM or any
subsequent series, to provide that the Mortgage, the rights and obligations of
the Company and the rights of the bondholders may be modified with the consent
of the holders of not less than 60% in aggregate principal amount of the bonds
adversely affected; provided, however, that no modification shall (1) extend the
time, or reduce the amount, of any payment on any bond, without the consent of
the holder of each bond so affected, (2) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of the Mortgage,
without the consent of the holders of all bonds then outstanding, or (3) reduce
the above percentage of the aggregate principal amount of bonds the holders of
which are required to approve any such modification without the consent of the
holders of all bonds then outstanding; and
WHEREAS, the form of registered bond of Series MM-1 and the form of the
Trustee's Certificate to appear on all bonds of Series MM-1 shall be
substantially as set forth in Exhibit A, attached hereto and made a part hereof;
and
WHEREAS, the form of registered bond of Series MM-2 and the form of the
Trustee's Certificate to appear on all bonds of Series MM-2 shall be
substantially as set forth in Exhibit B, attached hereto and made a part hereof;
and
WHEREAS, the Company also desires in and by this Supplemental Indenture to
amend Section 1 of Article X of the Mortgage as herein set forth; and
WHEREAS, all acts and things necessary to make the bonds of Series MM, when
authenticated by the Trustee and issued as in the Mortgage and in this
Supplemental Indenture provided, the valid, binding and legal obligations of the
Company, entitled in all respects to the security of the Mortgage, have been
done and performed and the creation, execution and delivery of this Supplemental
Indenture have in all respects been duly authorized by a resolution adopted by
the Board of Directors of the Company; and
WHEREAS, the Company has requested the Trustee, pursuant to the provisions
of Article XVI of the Mortgage, to enter into this Supplemental Indenture for
the purpose of supplementing and amending the Mortgage as herein provided;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) duly paid by the Trustee to the Company and for other good and
valuable considerations, the receipt whereof is hereby acknowledged, the parties
hereto agree as follows:
DESCRIPTION OF CERTAIN PROPERTY SUBJECT TO THE LIEN OF THE
MORTGAGE
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The Company hereby mortgages and conveys unto the Trustee, its successor or
successors in trust, the property described in Schedule 1 hereto attached and
expressly made a part hereof.
TO HAVE AND TO HOLD all of said property hereby conveyed and mortgaged or
intended to be conveyed and mortgaged, together with the rents, issues and
profits thereof, unto Trustee, and its successor or successors in trust and
their assigns in trust, under the and subject to all of the terms, conditions
and provisions of the Mortgage (as the Mortgage is defined herein) and of this
Supplemental Indenture as fully and in all respects as if said property had
originally been described in said Mortgage.
Subject, however, to the reservations, exceptions, limitations and
restrictions contained in the several deeds, leases, servitudes, contracts or
other instruments through which the Company acquired and/or claimed title to
and/or enjoys the use of the mortgaged property, and subject also to any
mortgages or easements existing or placed on any of said property at the time of
its acquisition, liens for taxes and assessments not due or, if due, in the
course of contests, judgments in the course of appeal or otherwise in contest
and secured by sufficient bond, liens arising out of proceedings in court in the
course of contests and undetermined liens or charges (if any) incidental to
construction, and subject also to such servitudes, easements, rights and
privileges in, over, on or through said property as may have been granted by the
Company to other persons prior to the date of this Supplemental Indenture.
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the holders of all bonds and interest coupons now or hereafter
issued under the Mortgage and for the enforcement of and payment of said bonds
and coupons when payable and the performance of and compliance with the
covenants and conditions of the Mortgage without any preference, distinction or
priority as to lien or otherwise of any bond or bonds over others by reason of
difference in time of the actual issue, sale or negotiation thereof; but so that
each and every bond now or hereafter issued under the Mortgage shall have the
same lien so that the interest and principal of any and all of such bonds shall,
subject to the terms of the Mortgage, be equally and proportionately secured
thereby, as if they had been made, executed, delivered, sold and negotiated
simultaneously with the execution thereof.
UPON CONDITION that, until the happening of an event of default as provided
in the Mortgage, the Company shall be suffered and permitted to possess, use and
enjoy the property, rights, privileges and franchises conveyed herein and to
receive and use the rents, issues, income, revenues, earnings and profits
thereof.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the Company and
the Trustee, and its successor or successors in trust, as follows:
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ARTICLE I
FIRST AND REFUNDING MORTGAGE 4% BONDS,
SERIES MM
SECTION 1. Two new series of bonds of the Company shall be issued under
and secured by the Mortgage as supplemented, which shall be designated as the
Company's "First and Refunding Mortgage 4% Bonds, Series MM-1" and "First and
Refunding Mortgage 4% Bonds, Series MM-2". The aggregate principal amount of
bonds of Series MM which may be executed by the Company and authenticated by the
Trustee shall be limited to $50,000,000 (that is $50,000,000 for each of the
bonds of Series MM-1 and the bonds of Series MM-2) (exclusive of bonds
authenticated and delivered upon interdenominational or other exchanges and
transfers pursuant to Section 3 of Article I hereof and Sections 2, 5, 11 and 12
of Article I of the Original Mortgage and delivered pursuant to Section 3 of
Article VI of the Original Mortgage as the same may relate to fully registered
bonds including, without limitation, any exchange of bonds of Series MM-2 for
bonds of Series MM-1). Bonds of Series MM all shall be registered bonds without
coupons, and shall be due and payable March 1, 2010. All bonds of Series MM
shall bear interest from the date thereof, payable at or before 9:00 o'clock
a.m. Chicago time on the first day of March and the first day of September in
each year, commencing September 1, 2003, until the principal thereof shall have
become due and payable, at the rate of 4% per annum, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
the applicable law) on any overdue installment of interest at the same rate per
annum, and shall be payable both as to principal and interest, and as to
premium, if any, in 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 Trustee in St. Xxxx, Minnesota PROVIDED, however,
that if a Registration Default (as defined in the Registration Rights Agreement
by and among the Company and the Initial Purchaser (as defined therein), dated
as of February 19, 2003) occurs, additional interest will accrue on the bonds of
Series MM at a rate of 0.25% per annum (increasing by an additional 0.25% per
annum after each consecutive 90-day period that occurs, after the date on which
such Registration Default occurs up to a maximum additional interest rate of
1.00% per annum) from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured.
So long as there is no existing default in the payment of interest on the
bonds of Series MM, the interest payable on any interest payment date shall be
to the person in whose name any bond of Series MM is registered at the close of
business on any record date with respect to any payment date, and such person
shall be entitled to receive the interest payable on such interest payment date
notwithstanding any transfer or exchange of such bond of Series MM subsequent to
the record date and on or prior to such interest payment date, except as and to
the extent 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 Series MM is registered at the close of
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business on a subsequent record date, which shall not be less than five (5) days
prior to the date of payment of such defaulted interest established by notice
given by mail by or on behalf of the Company to the person in whose name such
bond of Series MM is then registered and to the Trustee not less than ten (10)
days preceding such subsequent record date.
The term "record date" as used herein with respect to any interest payment
date (March 1 or September 1, as the case may be) shall mean the fifteenth day
of February or the fifteenth day of August, as the case may be, next preceding
such interest payment day.
As used in this Section I, the term "default in the payment of interest"
means failure to pay interest on the applicable interest payment date
disregarding any period of grace permitted by Article X of the Mortgage.
SECTION 2. Bonds of Series MM may be issued only as registered bonds
without coupons (hereinafter sometimes referred to as "registered bonds"), and
they shall be substantially in the form hereinbefore recited. They shall be
issuable in denominations which shall be multiples of $1,000 and any integral
multiple thereof and the execution by the Company of any bond of Series MM shall
evidence conclusively the due authorization of the denomination of such bond.
Each registered bond of Series MM shall be dated as of the date of the interest
payment date on which interest was paid on other bonds of said Series next
preceding the date of issue of such registered bond, except that (i) so long as
there is no existing default in the payment of interest upon the bonds of Series
MM, any bond of Series MM issued after the close of business on any record date
with respect to any interest payment date and prior to such interest payment
date, shall be dated as of such interest payment date, and (ii) any bond of
Series MM issued on an interest payment date on which interest on other bonds of
Series MM was paid shall be dated as of the date of issue and (iii) any bond of
Series MM issued before the initial interest payment date, shall be dated
February 27, 2003, the date of commencement of the first interest period for the
bonds of Series MM, unless (i) above is applicable.
The registered owner of any bond of Series MM dated as of an interest
payment date as provided in (i) above shall, if the Company shall default in the
payment of interest due on such interest payment date and such default shall be
continuing, be entitled to exchange such bond for a bond or bonds of Series MM
of the same aggregate principal amount dated as of the interest payment date
next preceding the interest payment date first mentioned in this sentence, or,
if the Company shall default in the payment of interest on the first interest
payment date for bonds of Series MM, such owner shall be entitled to exchange
such bond for a bond or bonds of Series MM of the same aggregate principal
amount dated as of February 27, 2003. If the Trustee shall have knowledge at any
time that any registered owner of a bond of Series MM shall be entitled by the
provision of the next preceding sentence to exchange such bond, the Trustee
shall within thirty (30) days mail to such owner at the address of such owner
appearing upon the registry book, a notice informing such owner that such owner
has
6
such right of exchange.
SECTION 3. In the manner prescribed in the Mortgage, the holder of a
registered bond or bonds of Series MM may, at the office or agency of the
Trustee in the City of St. Xxxx, State of Minnesota, surrender such bond or
bonds in exchange for a like aggregate principal amount of one or more
registered bonds of Series MM of any authorized denomination or denominations.
No charge will be made by the Company to the registered owner of a bond of
Series MM for the transfer thereof or for the exchange thereof for bonds of
Series MM of other authorized denominations, except, in the case of transfer, a
charge sufficient to reimburse the Company for any stamp or other tax or
governmental charge required to be paid by the Company or the Trustee.
SECTION 4. All bonds of Series MM shall be executed on behalf of the
Company by the manual or facsimile signature of its President or the Executive
Vice President or the Chief Financial Officer or the Treasurer or a Vice
President and shall have affixed thereon the manual or facsimile seal of the
Company attested by the manual or facsimile signature of its Secretary or one of
its Assistant Secretaries and be authenticated by the execution by the Trustee
of the certificate endorsed on said bonds, and said bonds shall be issued from
time to time, as the Board of Directors of the Company may determine, but in
accordance with the terms, provisions, conditions and restrictions set forth in
the Mortgage and in this Supplemental Indenture. The definitive bonds of Series
MM may be issued in typewritten or printed form or otherwise as provided in the
Mortgage.
SECTION 5. (a) The bonds of Series MM are subject to optional redemption
by the Company, in whole but not in part, at any time, at a redemption price of
100% of the principal amount thereof plus accrued interest, if any, to the
redemption date, if any of the following shall have occurred and if within one
hundred and eighty (180) days following said occurrence the Company files
written notice with the Trustee and directs that the bonds of Series MM are to
be redeemed:
(i) if, in the Company's reasonable judgment, unreasonable burdens
or excessive liabilities shall have been imposed upon the Company with
respect to its property or the operation thereof, including, without
limitation, federal, state or other ad valorem property, income or other
taxes, other than ad valorem taxes presently levied upon privately owned
property used for the same general purposes as its property; or
(ii) if changes in the economic availability of raw materials,
operating supplies, fuel or other energy sources or supplies, or
facilities necessary for the operation of the Company's property or such
technological or other changes shall have occurred which, in the
Company's reasonable judgment, render its property uneconomic for such
purposes; or
7
(iii) any court or administrative body shall enter an order or
decree preventing operations at the Company's business for six
consecutive months; or
(iv) any court or administrative agency shall issue an order,
decree or regulation the compliance with which would, in the opinion of
the Company, render the continuation of its operations economically
unfeasible.
(b) All of the outstanding bonds of Series MM may be redeemed at any time
by the Company, by the payment of the principal amount thereof and accrued
interest thereon to the date of redemption, without the payment of any premium,
in the event of the acquisition by any federal, state or municipal authority of
any substantial portion (which shall be not less than one-third as determined by
book values) of the income-producing properties of the Company which are subject
to the lien of the Mortgage.
(c) In the event of the acquisition at any time by any federal, state or
municipal authority of all or substantially all of the income-producing
properties of the Company which are subject to the lien of the Mortgage, the
Company shall be deemed to have elected to redeem and to have requested the
Trustee to redeem all the bonds of all series at the respective applicable
redemption price or prices (together with accrued interest to the date of
redemption), without the payment of any premium, on a date determined by the
Trustee in its discretion to be the earliest practicable redemption date after
receipt by the Trustee of all cash which the Trustee is entitled to receive in
respect of such acquisition by such federal, state or municipal authority. If
the cash so received by the Trustee and all other cash then held by the Trustee
as such, except funds held in trust for the benefit of the holders of particular
bonds and coupons, is not sufficient to effect the redemption of all the bonds
of all series as aforesaid and to pay all amounts owing to the Trustee under the
Mortgage as supplemented (including fees and expenses to be incurred by the
Trustee in connection with such redemption), the Company covenants and agrees
that, within five (5) days after receipt by the Trustee of all cash which the
Trustee is entitled to receive as aforesaid in respect of such acquisition, the
Company will deposit with the Trustee for that purpose cash in an amount
sufficient to make up such deficiency.
Upon receipt by the Trustee of moneys sufficient for said purposes, notice
of such redemption shall be given by the Trustee for and on behalf and in the
name of the Company. To the extent that such cash received, held and deposited
as aforesaid shall be required for the purpose of redeeming bonds pursuant to
this subparagraph (i), the Company shall be deemed to have directed the Trustee
to apply the same for the purpose, and the balance, if any, after payment of all
said amounts owing to the Trustee, shall be paid to or upon the order of the
Company.
SECTION 6. If bonds of Series MM are to be redeemed as provided in Section
5 of this Article I, notice of redemption shall be mailed by or on behalf of the
Company, postage prepaid, at least thirty (30) days and not more than sixty (60)
days prior to such date of redemption, to the registered owners of all bonds of
Series MM to be so
8
redeemed, at their respective addresses appearing upon the registry book. Any
notice which is mailed as herein provided shall be conclusively presumed to have
been properly and sufficiently given on the date of such mailing, whether or not
the holder receives the notice. In any case, failure to give due notice by mail,
or any defect in the notice, to the registered owners of any bonds of Series MM
designated for redemption as a whole or in part, shall not affect the validity
of the proceedings for the redemption of any other bond of Series MM. In case of
any redemption of bonds of Series MM by the Trustee pursuant to the provisions
of the Mortgage or any indenture supplemental thereto, notice of redemption
shall be given in a similar manner by the Trustee.
Except as provided above, the provisions of Article VI of the Mortgage
shall in all respects apply to any such redemption.
SECTION 7. (a) GLOBAL BONDS. Bonds of Series MM issued in global form will
be substantially in the form of Exhibit A or Exhibit B attached hereto
(including the Global Bond Legend thereon and the "Schedule of Exchanges of
Interests in the Global Bond" attached thereto). Bonds of Series MM issued in
definitive form will be substantially in the form of Exhibit A or Exhibit B
attached hereto (but without the Global Bond Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Bond" attached thereto). Each
Global Bond will represent such of the outstanding bonds as will be specified
therein and each shall provide that it represents the aggregate principal amount
of outstanding bonds of Series MM from time to time endorsed thereon and that
the aggregate principal amount of outstanding bonds represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Bond to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding bonds of
Series MM represented thereby will be made by the Trustee or the Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 11 of Article I hereof.
(b) TEMPORARY GLOBAL BONDS. Bonds of Series MM offered and sold in reliance
on Regulation S will be issued initially in the form of the Regulation S
Temporary Global Bond, which will be deposited on behalf of the purchasers of
the bonds represented thereby with the Trustee, at its St. Xxxx, Minnesota
office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream Bank, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The Restricted
Period will be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Clearstream Bank certifying that they
have received certification of non-United States beneficial ownership of
100% of the aggregate principal amount of the Regulation S Temporary Global
Bond (except to the extent of any beneficial owners thereof who acquired an
interest therein
9
during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a 144A Global Bond bearing a Private
Placement Legend, all as contemplated by Section 11 of Article I hereof);
and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Temporary Global Bond will be exchanged for beneficial
interests in Regulation S Permanent Global Bonds pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Bonds, the Trustee will cancel the Regulation S Temporary Global Bond.
The aggregate principal amount of the Regulation S Temporary Global Bond and the
Regulation S Permanent Global Bonds may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(c) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream in effect from time to time will
be applicable to transfers of beneficial interests in the Regulation S Global
Bonds that are held by Participants through Euroclear or Clearsteam.
SECTION 8. In this Supplemental Indenture, the following terms shall have
the meanings specified in this Section 8, unless the context otherwise requires:
"144A GLOBAL BOND" means a Global Bond substantially in the form of Exhibit
A hereto bearing the Global Bond Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Bonds sold in reliance on Rule 144A.
"ADDITIONAL INTEREST" means all additional interest then owing pursuant to
Section 6 of the Registration Rights Agreement.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Bond, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such
10
"person" has the right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY" means any day which is not a Sunday or a legal holiday or a
day (including Saturday) on which banking institutions in Chicago, Illinois, in
New York, New York, and in the city where the Principal Office of the Trustee is
located are not required or authorized to remain closed and other than a day on
which the New York Stock Exchange is not closed.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"DEFINITIVE BOND" means a certificated Bond registered in the name of the
Holder thereof and issued in accordance with Section 11 of Article I hereof,
substantially in the form of Exhibit A1 hereto except that such Bond shall not
bear the Global Bond Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Bond" attached thereto.
"DEPOSITARY" means, with respect to the bonds of any series issuable or
issued in whole or in part in the form of one or more Global bonds, a clearing
agency registered under the Securities Exchange Act of 1934 or any successor
clearing agency registered under such Act, and if at any time there is more than
one such person, the term "Depositary" as used with respect to the bonds of any
series shall mean the Depositary with respect to the bonds of such series.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE BONDS" means the Bonds issued in the Exchange Offer pursuant to
Section 11(f) of Article I hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"GLOBAL BONDS" means, individually and collectively, each of the Restricted
Global Bonds and the Unrestricted Global Bonds, substantially in the form of
Exhibits A
11
or B hereto issued in accordance with Section 11 of Article I hereof.
"GLOBAL BOND LEGEND" means the legend set forth in Section 11(g)(2) of
Article I, which is required to be placed on all Global Bonds issued under this
Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"INITIAL PURCHASER" means Banc One Capital Markets, Inc.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Bonds for use by such Holders in
connection with the Exchange Offer.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 11(g)(1)
of Article I to be placed on all Bonds issued under this Supplemental Indenture
except where otherwise permitted by the provisions of this Supplemental
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of February 19, 2003, between the Company and the Initial Purchaser, as
such agreement may be amended, modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL BOND" means a Regulation S Temporary Global Bond or
Regulation S Permanent Global Bond, as appropriate.
"REGULATION S PERMANENT GLOBAL BOND" means a permanent Global Bond in the
form of Exhibit A hereto bearing the Global Bond Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Bond upon
expiration of the Restricted Period.
12
"REGULATION S TEMPORARY GLOBAL BOND" means a temporary Global Bond in the
form of Exhibit E hereto deposited with or on behalf of and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Bonds initially sold in reliance on Rule 903
of Regulation S.
"RESTRICTED DEFINITIVE BOND" means a Definitive Bond bearing the Private
Placement Legend.
"RESTRICTED GLOBAL BOND" means a Global Bond bearing the Private Placement
Legend.
"RESTRICTED PERIOD" means the 40-day distribution compliance period as
defined in Regulation S.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"UNRESTRICTED GLOBAL BOND" means a permanent global Bond substantially in
the form of Exhibit A1 attached hereto that bears the Global Bond Legend and
that has the "Schedule of Exchange of Interests in the Global Bond" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Bonds that do not bear the Private
Placement Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under the
Securities Act.
SECTION 9. In any case where the date of maturity of interest on or
principal of the bonds of Series MM or the date fixed for redemption of any
bonds of Series MM shall be in the location of the principal office of the
Trustee, a Saturday, Sunday or a legal holiday or a day on which banking
institutions are authorized by law to close in the State of Illinois, then
payment of interest or principal (and premium, if any) need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
SECTION 10. The Company reserves the right, without any consent or other
13
action by holders of the bonds of Series MM or any subsequent series of bonds,
to amend the Mortgage by inserting the following language as Section 4 of
Article XVI immediately following current Section 3 of Article XVI of the
Mortgage:
SECTION 4. Anything in Section 1 of this Article to the contrary
notwithstanding, with the consent of the holders of not less than
sixty per centum (60%) in aggregate principal amount of the bonds at
the time outstanding or their attorneys-in-fact duly authorized, or,
if the rights of the holders of one or more, but not all, series then
outstanding are affected, the consent of the holders of not less than
sixty per centum (60%) in aggregate principal amount of the bonds at
the time outstanding of all affected series, taken together, and not
any other series, the Company, when authorized by resolution of its
Board of Directors, and the Trustee, from time to time and at any
time, subject to the restrictions in this Mortgage contained, may
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any
supplemental indenture or modifying the rights and obligations of the
Company and the rights of the holders of any of the bonds and coupons;
provided, however, that no such supplemental indenture shall (1)
extend the maturity of any of the bonds or reduce the rate or extend
the time of payment of interest thereon, or reduce the amount of the
principal thereof, or reduce any premium payable on the redemption
thereof or change the coin or currency in which any bond or interest
thereon is payable, without the consent of the holder of each bond so
affected, or (2) permit the creation of any lien, not otherwise
permitted, prior to or on a parity with the lien of the Mortgage,
without the consent of the holders of all the bonds then outstanding,
or (3) reduce the aforesaid percentage of the aggregate principal
amount of bonds the holders of which are required to approve any such
supplemental indenture, without the consent of the holders of all the
bonds then outstanding. For the purposes of this Section 4, bonds
shall be deemed to be affected by a supplemental indenture if such
supplemental indenture adversely affects or diminishes the rights of
holders thereof against the Company or against its property.
Upon the written request of the Company, accompanied by resolution of
its Board of Directors authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of bondholders as aforesaid (the instrument or
instruments evidencing such consent to be dated within one year of
such request), the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under
this Mortgage or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee shall be entitled to receive
14
and, subject to Section 7 of Article XV hereof, may rely upon, an
opinion of counsel as conclusive evidence that any such supplemental
indenture is authorized or permitted by the provisions of this
Section 4.
It shall not be necessary for the consent of the bondholders under
this Section 4 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
The Company and the Trustee, if they so elect, and either before or
after such 60% or greater consent has been obtained, may require the
holder of any bond consenting to the execution of any such
supplemental indenture to submit his bond to the Trustee or to such
bank, banker or trust company as may be designated by the Trustee for
the purpose, for the notation thereon of the fact that the holder of
such bond has consented to the execution of such supplemental
indenture, and in such case such notation, in form satisfactory to the
Trustee, shall be made upon all bonds so submitted, and such bonds
bearing such notation shall forthwith be returned to the persons
entitled thereto. All subsequent holders of bonds bearing such
notation shall be deemed to have consented to the execution of such
supplemental indenture, and consent, once given or deemed to be given,
may not be withdrawn.
Prior to the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 4,
the Company shall publish a notice, setting forth in general terms the
substance of such supplemental indenture, at least once in one daily
newspaper of general circulation in each city in which the principal
of any of the bonds shall be payable, or, if all bonds outstanding of
any series shall be registered bonds without coupons or coupon bonds
registered as to principal, such notice with respect to such series
shall be mailed first class, postage prepaid, and registered if the
Company so elects, to each registered holder of bonds of such series
at the last address of such holder appearing on the registry books,
such publication or mailing, as the case may be, to be made not less
than thirty (30) days prior to such execution. Any failure of the
Company to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 11. (a) TRANSFER AND EXCHANGE OF GLOBAL BONDS. A Global Bond may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Bonds
will be exchanged by the Company for Definitive Bonds if:
15
(1) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within
120 days after the date of such notice from the Depositary; or
(2) in the case of a Global Bond held for an account of Euroclear or
Clearstream, Euroclear or Clearstream, as the case may be, (a) is closed
for business for a continuous period of 14 days (other than by reason of
statutory or other holidays), or (b) announces an intention permanently to
cease business or does in fact do so;
(3) the Company in its sole discretion determines that the Global
Bonds (in whole but not in part) should be exchanged for Definitive Bonds
and delivers a written notice to such effect to the Trustee; PROVIDED that
in no event shall the Regulation S Temporary Global Bond be exchanged by
the Company for the Definitive Bonds prior to (a) the expiration of the
Restricted Period and (b) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or
(4) there has occurred and is continuing a Default or Event of
Default with respect to the Bonds.
Upon the occurrence of any of the proceeding events in (1) through (4) above,
Definitive Bonds shall be issued in such names as the Depositary shall instruct
the Trustee. Definitive Bonds delivered in exchange for any Global Bonds will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Depositary (in accordance with its customary procedures) and
will bear the applicable Private Placement Legend, unless that legend is not
required by applicable law.
Global Bonds also may be exchanged or replaced, in whole or in part, as
provided in Sections 2 and 7 hereof. Every Bond authenticated and delivered in
exchange for, or in lieu of, a Global Bond or any portion thereof, pursuant to
this Section 11 or Sections 2 and 7 hereof, 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 other than as provided in this Section 11, however, beneficial
interests in a Global Bond may be transferred and exchanged as provided in this
Section 11.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL BONDS. The
transfer and exchange of beneficial interests in the Global Bonds will be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Beneficial interests in
the Restricted Global Bonds will be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Bonds also will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
16
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL BOND.
Beneficial interests in any Restricted Global Bond may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Bond in accordance with the transfer
restrictions set forth in the Private Placement Legend; PROVIDED, HOWEVER,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Bond may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Bond
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Bond. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 11(b)(1).
(2) EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL BONDS. In connection
with all transfers and exchanges of beneficial interests that are not
subject to Section 11(b)(1)] above, the transferor of such beneficial
interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary 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
(ii) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant
account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Bond in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Bond shall be registered to effect the transfer or
exchange referred to in (1) above; PROVIDED that in no event
shall Definitive Bonds be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Bond
prior to (A) the expiration of the Restricted Period
17
and (B) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon consummation
of an Exchange Offer by the Company in accordance with Section
11(f) hereof, the requirements of this Section 11(b)(2) shall be
deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered
by the Holder of such beneficial interests in the Restricted
Global Bonds. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Bonds
contained in this Indenture and the Bonds or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Bond(s) pursuant to Section 11(h)
hereof.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED GLOBAL
BOND. A beneficial interest in any Restricted Global Bond may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Bond if the transfer
complies with the requirements of Section 11(b)(2) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Bond, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Bond or the
Regulation S Global Bond, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(4) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL BOND FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL BOND. A
beneficial interest in any Restricted Global Bond may be exchanged by any
holder thereof for a beneficial interest in 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 11(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Bonds or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
18
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Bond proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Bond, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted 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 in the form of Exhibit C hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar 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.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
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
Section __ hereof, 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 subparagraph (B) or (D)
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 Restricted Global Bond.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE BONDS.
(1) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL BONDS TO RESTRICTED
DEFINITIVE Bonds. If any holder of a beneficial interest in a Restricted
Global Bond proposes to exchange such beneficial interest for a Restricted
Definitive
19
Bond or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Bond, then, upon receipt by
the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Bond proposes to exchange such beneficial interest for a
Restricted Definitive Bond, a certificate from such holder in the form
of Exhibit D hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit C hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Bond to be reduced accordingly pursuant to Section 11(h) hereof, and the Company
shall execute and 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
Restricted Global Bond pursuant to this Section 11(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 Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Bonds to the Persons in whose names
such Bonds are so registered. Any Definitive Bond issued in exchange for a
beneficial interest in a Restricted Global Bond pursuant to this Section
11(c)(1) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
20
(2) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL BOND TO
DEFINITIVE BONDS. Notwithstanding Sections 11(c)(1)(A) and (C) hereof,
a beneficial interest in the Regulation S Temporary Global Bond may
not be exchanged for a Definitive Bond or transferred to a Person who
takes delivery thereof in the form of a Definitive Bond prior to (A)
the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.
(2) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL BONDS TO UNRESTRICTED
DEFINITIVE BONDS. A holder of a beneficial interest in a Restricted Global
Bond may exchange such beneficial interest for an Unrestricted Definitive
Bond or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Bond only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Bonds or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Bond proposes to exchange such beneficial
interest for a Definitive Bond that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit D hereto, including the certifications in item (1)(b)
thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Bond proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Bond that does not bear the Private Placement
21
Legend, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar 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.
(3) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL BONDS TO UNRESTRICTED
DEFINITIVE BONDS. If any holder of a beneficial interest in an Unrestricted
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 satisfaction of the
conditions set forth in Section 11(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Bond to be reduced
accordingly pursuant to Section 11(h) hereof, and the Company will execute
and the Trustee will 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 pursuant to
this Section 11(c)(3) will be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest requests through instructions to the Registrar from or through the
Depositary and the Participant or Indirect Participant. The Trustee will
deliver such Definitive Bonds to the Persons in whose names such Bonds are
so registered. Any Definitive Bond issued in exchange for a beneficial
interest pursuant to this Section 11(c)(3) will not bear the Private
Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE BONDS FOR BENEFICIAL INTERESTS.
(1) RESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL Bonds. If any Holder of a Restricted Definitive Bond proposes to
exchange such Bond for a beneficial interest in a Restricted Global Bond or
to transfer such Restricted Definitive Bonds to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Bond,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Bond proposes to
exchange such Bond for a beneficial interest in a Restricted Global
Bond, a certificate from such Holder in the form of Exhibit D hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Bond is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item (1)
thereof;
22
(C) if such Restricted Definitive Bond is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Bond is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit C hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Bond is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit C hereto, including the certifications in item
(3)(b) thereof; or
(F) if such Restricted Definitive Bond is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Bond, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Bond, in the case of clause
(B) above, the 144A Global Bond, in the case of clause (C) above, the
Regulation S Global Bond.
(2) RESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL BONDS. A Holder of a Restricted Definitive Bond may
exchange such Bond for a beneficial interest in an Unrestricted Global Bond
or transfer such Restricted Definitive Bond to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Bond
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Bonds or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
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(D) the Registrar receives the following:
(i) if the Holder of such Definitive Bonds proposes to
exchange such Bonds for a beneficial interest in the Unrestricted
Global Bond, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Bonds proposes to
transfer such Bonds to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Bond, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
opinion of counsel in form reasonably acceptable to the Registrar 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.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 11(d)(2), the Trustee will cancel the Definitive Bonds and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Bond.
(3) UNRESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL BONDS. A Holder of an Unrestricted Definitive Bond may
exchange such Bond for a beneficial interest in an Unrestricted Global Bond
or transfer such Definitive Bonds to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Bond at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee will cancel the applicable Unrestricted Definitive Bond and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Bonds.
If any such exchange or transfer from a Definitive Bond to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or
(3) above at a time when an Unrestricted Global Bond has not yet been
issued, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section __ hereof, the Trustee will authenticate one or
more Unrestricted Global Bonds in an aggregate principal amount equal to
the principal amount of Definitive Bonds so 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 11(e), the Registrar will register the transfer or
exchange of
24
Definitive Bonds. Prior to such registration of transfer or exchange, the
requesting Holder must present or surrender to the Registrar the Definitive
Bonds duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder must provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 11(e).
(1) RESTRICTED DEFINITIVE BONDS TO RESTRICTED DEFINITIVE BONDS. Any
Restricted Definitive Bond may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Bond if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and opinion of counsel
required by item (3) thereof, if applicable.
(2) RESTRICTED DEFINITIVE BONDS TO UNRESTRICTED DEFINITIVE BONDS. Any
Restricted 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:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a broker-dealer, (ii) a Person participating in the
distribution of the Exchange Bonds or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
25
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Bonds
proposes to exchange such Bonds for an Unrestricted Definitive
Bond, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Bonds
proposes to transfer such Bonds to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Bond,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an opinion of counsel in form reasonably
acceptable to 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.
(3) UNRESTRICTED DEFINITIVE BONDS TO UNRESTRICTED DEFINITIVE BONDS. A
Holder of Unrestricted Definitive Bonds may transfer such 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 Registrar shall
register the Unrestricted Definitive Bonds pursuant to the instructions
from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company will issue and, upon receipt
of an Authentication Order in accordance with the Mortgage hereof, the Trustee
will authenticate:
(1) one or more Unrestricted Global Bonds in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Bonds tendered into the Exchange Offer by Persons that
certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Bonds and (z) they are not affiliates (as defined in Rule 144) of
the Company; and
(2) Unrestricted Definitive Bonds in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Bonds accepted
for exchange in the Exchange Offer.
26
Concurrently with the issuance of such Bonds, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Bonds to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Bonds so accepted Unrestricted Definitive Bonds in the appropriate principal
amount.
(g) LEGENDS. The following legends will appear on the face of all Global
Bonds and Definitive Bonds issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Bond and each Definitive Bond (and all Bonds issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS OFFERED BOND (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THIS OFFERED BOND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS OFFERED BOND
IS HEREBY NOTIFIED THAT THE SELLER OF THIS OFFERED BOND MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS OFFERED BOND AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS OFFERED BOND MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) INSIDE THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN A
TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 UNDER THE SECURITIES
ACT AND SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH REOFFER, RESALE OR
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR
OTHER INFORMATION REASONABLY SATISFACTORY TO IT THAT SUCH REOFFER, RESALE
OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS OFFERED BOND FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
27
(B) Notwithstanding the foregoing, any Global Bond or Definitive
Bond issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2),
(d)(3), (e)(2), (e)(3) or (f) of this Section 11 (and all Bonds issued
in exchange therefor or substitution thereof) will not bear the
Private Placement Legend.
(2) GLOBAL BOND LEGEND. Each Global Bond will bear a legend in
substantially the following form:
"THIS GLOBAL BOND IS HELD BY THE DEPOSITARY (AS DEFINED IN THE 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 11 OF ARTICLE I OF THE
SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 11(a) OF ARTICLE I OF THE SUPPLEMENTAL
INDENTURE, (3) THIS GLOBAL BOND MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION AND (IV) THIS GLOBAL BOND MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR BONDS IN
DEFINITIVE FORM, THIS BOND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. 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."
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(3) REGULATION S TEMPORARY GLOBAL BOND LEGEND. The Regulation S
Temporary Global Bond will bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED BONDS,
ARE AS SPECIFIED IN THE SUPPLEMENTAL INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
BOND SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) 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
canceled in whole and not in part, each such Global Bond will be returned to or
retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Bond is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Bond or for Definitive Bonds, the principal amount of Bonds
represented by such Global Bond will be reduced accordingly and an endorsement
will be made on such Global Bond by the Trustee or by the Depositary 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,
such other Global Bond will be increased accordingly and an endorsement will be
made on such Global Bond by the Trustee or by the Depositary at the direction of
the Trustee to reflect such increase.
ARTICLE II
COVENANTS OF THE COMPANY
SECTION 1. The Company covenants and agrees, so long as any of the bonds
of Series MM are outstanding or until provision shall have been made for the
redemption or payment thereof by the deposit with the Trustee of money necessary
to effect such redemption or payment, as follows:
(a) The Company, during or at the close of the calendar year 2003,
and during or at the close of each calendar year thereafter, shall charge
against the income for such calendar year and place to the credit of a
"depreciation reserve account" to be kept on its books, the greater of the
following two amounts: (i) the amount of $1,550,000, or (ii) an amount
equal to 2 1/2% of the sum of
(i) the aggregate principal amount of all bonds which, at the
time such credit is placed to said "depreciation reserve account",
shall be outstanding and shall have been outstanding under the
Mortgage as supplemented for a
29
period of not less than six (6) months, or which at such time shall
have been outstanding under the Mortgage as supplemented for less than
six (6) months, if such bonds shall have been issued, or the proceeds
thereof shall have been used, directly or indirectly, for or on
account of the pledge, acquisition, exchange, cancellation, payment,
refundment, redemption or discharge at, before or after maturity of
the bonds of any series theretofore issued under the Mortgage or of
any "underlying bonds" or "specified obligations" as defined in
Section 4 of Article III of the Mortgage; and
(ii) the aggregate principal of all indebtedness of the Company
secured by a mortgage lien upon the properties or assets of the
Company, which is a lien superior to the lien of the Mortgage, except
(A) any such mortgage indebtedness the evidences of which shall then
be pledged with the Trustee under the provisions of the Mortgage or
pledged with the Trustee under any mortgage constituting a lien
superior to the lien of the Mortgage on any part of the properties or
assets of the Company, and (B) any such mortgage indebtedness for the
payment or redemption of which the necessary moneys shall have been
deposited with the Trustee under the Mortgage securing the same;
provided, however, that (1) the amount required by this subparagraph
(a) to be placed to the credit of such "depreciation reserve account"
in or for any calendar year shall be deemed to include and not to be
in addition to amounts which, by the provisions of the Mortgage, the
Company is required to add to any depreciation reserve account for
such year, (2) nothing in this subparagraph (a) shall prevent the
Company from crediting to such "depreciation reserve account", during
or at the close of any calendar year, an amount greater than the
amount required by this subparagraph (a) for such year, and (3) the
Company may, from time to time, during each such calendar year, charge
against such "depreciation reserve account" the cost of depreciable
property retired by it during such year, including the cost, if any,
of dismantling such retired property, less any salvage credits
applicable thereto.
(b) The Company, after it shall have issued any of the bonds of Series
MM-1 and bonds of Series MM-2, shall not request the Trustee
(i) to authenticate bonds of any series under the Mortgage
(A) pursuant to Section 2 of Article III of the
Mortgage for or on account of the acquisition and cancellation, or
of the payment, cancellation, redemption or other discharge at,
before or after maturity, affected prior to January 1, 1951, of any
bonds of any series theretofore issued under the Mortgage, or
(B) pursuant to Section 4 of Article III of the
Mortgage, for or on account of the pledge, acquisition, exchange,
cancellation, payment, refundment, redemption or discharge effected
30
prior to January 1, 1951, of "underlying bonds" or "specified
obligations" mentioned in said Section 4, or
(C) pursuant to Section 5 of Article III of the
Mortgage, for or in respect of expenditures made prior to January
1, 1951, for or on account of "permanent property", or
(ii) to pay to the Company any cash pursuant to Section 6
of said Article III for or on account of any transactions mentioned in
clause (A) or clause (B) of subdivision (i) of this subparagraph (b)
or for or in respect of any expenditures mentioned in clause (C) of
subdivision (i) of this subparagraph (b).
Neither shall the Company request the Trustee to authenticate bonds of any
series under the provisions of Section 4 of Article III of the Mortgage or
to pay the Company any moneys under Section 6 of said Article III or under
Article IX of the Mortgage for or on account of the payment, discharge and
cancellation effected on or after January 1, 1944, at, before or after
maturity of any of the Refunding Mortgage Five Per Cent Gold Bonds of the
Company, dated September 1, 1897, due September 1, 1947.
(c) The Company shall not request the Trustee to authenticate bonds of
any series under the Mortgage or to pay to the Company any cash deposited
with or received by the Trustee under the Mortgage (except cash deposited
with or received by the Trustee as and for a sinking fund for any series of
bonds which have been or may hereafter be issued under the Mortgage),
unless the Company as a part of such request, and in addition to all other
documents required by the Mortgage to be delivered to the Trustee in
connection with such request, shall deliver to the Trustee a certificate or
certificates, signed by the President or the Executive Vice President or
the Chief Financial Officer or a Vice President and by the Treasurer or an
Assistant Treasurer of the Company
(i) showing, in case such request is for the authentication of
bonds pursuant to Section 5 of Article III of the Mortgage or for the
payment of cash pursuant to Section 6 of said Article III for or in
respect of expenditures made by the Company on or after January 1,
1951, for or on account of "permanent property":
(A) the total amount of expenditures (reduced to the
extent required, if any, by the provisions of clause (G) of this
subdivision (i)) made on or after January 1, 1951, for or on
account of "permanent property";
(B) the original cost of all properties, subject to the
lien of the Mortgage at any time on or after January 1, 1951,
replaced or retired on or after January 1, 1951, less, if any such
property shall
31
have been released from the lien of the Mortgage pursuant to any
applicable provision of the Mortgage and to obtain such release
cash shall have been deposited with the Trustee, the amount of such
cash;
(C) an amount equal to the sum of (1) 133-1/3% of the
aggregate principal amount of bonds which have been authenticated
after January 1, 1951, pursuant to Section 5 of Article III of the
Mortgage for or on account of such expenditures made on or after
January 1, 1951, plus (2) 133-1/3% of the aggregate amount of
deposited cash withdrawn after January 1, 1951, pursuant to the
provisions of Section 6 of Article III of the Mortgage for or in
respect of such expenditures made on or after January 1, 1951, plus
(3) 133-1/3% of the aggregate amount of excess of the nature
described in subdivision (2) of Section 4 of Article III of the
Mortgage eliminated or compensated, as in said subdivision (2)
provided, for or in respect of expenditures of the Company for or
on account of "permanent property" during said period commencing
January 1, 1951;
(D) an amount equal to 100% of the aggregate amount of
moneys withdrawn by the Company pursuant to the provisions of
Article IX of the Mortgage on or after January 1, 1951, for or in
respect of expenditures made for or on account of "permanent
property";
(E) an amount equal to the excess, if any, of the
amount shown pursuant to clause (A) above over the sum of the
amounts shown pursuant to clauses (B), (C) and (D) above;
(F) that, for a period of twelve (12) consecutive
calendar months (to be selected by the Company) ending within
ninety (90) days next preceding such request, the "net earnings of
the Company" shall have been at least twice the amount of the
annual interest requirement of all "mortgage and prior lien debt of
the Company";
(G) that the amount of the expenditure, if any,
included in the expenditures set forth in clause (A) above in
respect of any particular "permanent property", which at the time
of its acquisition was subject to the lien of any mortgage existing
or placed thereon at the time of its acquisition, does not exceed
an amount equal to the excess, if any, of the value (determined as
provided in the first paragraph of Section 8 of Article III of the
Mortgage) of such particular "permanent property" at the time of
acquisition of such property over 133-1/3% of the principal amount
of all indebtedness secured by all such mortgages existing or
placed on such particular property at the time of the acquisition
thereof, and that the amount of
32
the expenditure, if any, included in the expenditures set forth in
clause (A) above in respect of any particular "permanent property",
which at the time of its acquisition was not subject to any such
lien, does not exceed an amount equal to the value (determined as
provided in the first paragraph of Section 8 of Article III of the
Mortgage) of such particular "permanent property" at the time of
acquisition of such property;
(ii) showing, in case such request is for the authentication of
bonds pursuant to Section 4 of Article III of the Mortgage or for the
payment of cash pursuant to Section 6 of said Article III for or on
account of the pledge, acquisition, exchange, cancellation, payment,
refundment, redemption or discharge effected on or after January 1,
1951, at, before or after maturity of any "specified obligations"
mentioned in said Section 4, that at the time such "specified
obligations" became "specified obligations" or at some later date the
Company, pursuant to the provisions of Section 5 of Article III of the
Mortgage, as limited by the provisions of this Section I, shall have
obtained, or shall have had the right to obtain, the authentication
and delivery of bonds in any principal amount for or in respect of
expenditures made on or after January 1, 1951, for or on account of
"permanent property";
(iii) showing, in case such request shall be for the payment of
moneys pursuant to Article IX of the Mortgage for or in respect of
expenditures made for or on account of "permanent property", that none
of such expenditures were made (1) prior to January 1, 1951, or (2)
for or on account of "permanent property" acquired more than six
months prior to the date when the Trustee received the moneys so to be
paid (or in case of moneys representing the proceeds of obligations,
referred to in said Article IX, the date when the Trustee received
such obligations); and
(iv) showing, in case such request is for the application of
any moneys pursuant to Article IX of the Mortgage to the payment,
redemption or purchase of any "specified obligations", that such
"specified obligations", if pledged under the Mortgage, would permit
the Company to obtain the authentication of bonds in a principal
amount equal to the principal amount of such "specified obligations"
pursuant to the provisions of Section 4 of Article III of the Mortgage
as limited by the provisions of this Section 1.
(d) In connection with any request for the authentication of bonds
pursuant to Section 5 of Article III of the Mortgage or the payment of cash
pursuant to Section 6 of said Article III of Mortgage, for or in respect of
expenditures made by the Company on or after January 1, 1951, the Company
shall not obtain the authentication of bonds of any series under the
Mortgage or the payment of any cash in excess of 75% of the amount shown in
the certificate delivered as a part
33
of such request pursuant to clause (E) of subdivision (i) of subparagraph
(c) of this Section 1; and the Company shall not obtain the authentication
of any bonds or the payment of any cash deposited with or received by the
Trustee under the Mortgage otherwise than in accordance with the provisions
of the Mortgage as supplemented.
(e) Wherever used in this Supplemental Indenture
(i) "mortgage and prior lien debt of the Company", as of the
date of any request to the Trustee for the authentication of bonds or
the payment of cash, shall mean:
(A) all the bonds then outstanding under the Mortgage,
less the amount of any of such bonds which shall then be held by or
be delivered to the Trustee for cancellation under any of the
provisions of the Mortgage, and less the amount of any such bonds
for the payment or redemption of which the necessary moneys shall
have been deposited under the Mortgage with the Trustee to effect
such payment or redemption;
(B) the bonds then requested to be authenticated under
the Mortgage; and
(C) all mortgage indebtedness secured by a lien
superior to the lien of the Mortgage on any part of the properties
and assets of the Company, except any such mortgage indebtedness
the evidences of which shall then be pledged with the Trustee under
the provisions of the Mortgage or pledged with the Trustee under
any mortgage constituting a lien superior to the lien of the
Mortgage on any part of the properties and assets of the Company,
and except any such mortgage indebtedness for the payment or
redemption of which the necessary moneys shall have been deposited
with the trustee under the mortgage securing the same to effect
such payment or redemption;
(ii) "net earnings of the Company" for any twelve (12) months'
period shall mean the amount remaining after deducting from the sum of
(A) the gross operating revenues of the Company for
such period derived from its property subject to the lien of the
Mortgage, including but not limited to revenues derived from
electrical energy, gas or steam purchased by the Company and resold
by it, and the net income derived by the Company from its
merchandising and jobbing operations; and
(B) other income of the Company for such period derived
from interest on bank balances and from current working capital
34
invested in unpledged obligations of the United States of America
or of any state or of any municipality or subdivision thereof, and
other currently earned income of the Company derived from the
ownership of securities, in the treasury of the Company and
unpledged, of operating electric, gas or steam companies (including
natural or mixed gas production, storage, transportation or
distribution companies) or from unpledged advances to such
companies any of the securities of which are so owned, the sum of
the following:
(C) operating expenses of the Company for such period,
including maintenance and repairs, rentals, taxes (except taxes
based upon net income), insurance and the cost of electrical
energy, gas or steam purchased for resale, but excepting expenses
in connection with operations, the net income only of which is
included in clause (A) of subdivision (ii) of this subparagraph
(e), and excepting all reserves or charges for amortization of debt
discount and expense; and
(D) an amount, if such period shall end with the close
of a calendar year, equal to the amount which the Company is
required by subparagraph (a) of this Section 1 to place, during or
at the close of such calendar year, to the credit of the
"depreciation reserve account", mentioned in said subparagraph (a)
(all determined without deduction for any charge made to the
"depreciation reserve account" permitted by clause (3) of the
proviso of subparagraph (a) of this Section 1), or, if such period
shall include parts of two (2) calendar years, then an amount which
shall be determined by (1) prorating, on a monthly basis over the
portion of the earlier year thus included, the amount which the
Company shall have been so required to credit to the "depreciation
reserve account" during or at the close of such earlier year, and
(2) prorating, on a monthly basis over the portion of the later of
said two (2) years thus included, the amount which the Company
would be required to credit to such "depreciation reserve account"
if such credit were placed to such account at the close of such
period;
provided, however, that the amount of other income of the Company,
referred to in clause (B) of subdivision (ii) of this subparagraph (e),
shall not exceed 10% of said net earnings; and income in the form of
dividends received by the Company upon stock of any class owned by it
shall be considered as currently earned under the provisions of said
clause (B) to the extent that during such period the earnings of the
paying company shall be sufficient for the payment of dividends upon all
stock of such class during such period; and income in the form of
interest received by the Company upon evidences of indebtedness of any
class owned by it shall be considered as currently earned under the
provisions of said clause (B) to the extent that during such period the
earnings of the paying company shall be available for the payment of the
35
interest accruing during such period upon all indebtedness of such
class, after deducting from such earnings all interest charges accruing
during such period upon obligations secured by prior liens; and, in case
any property owned by the Company at the date of the request to the
Trustee for the authentication of bonds or payment or withdrawal of cash
shall not have been owned by it during any part of any such period, or
shall have been owned by it during a part only of such period, then and
in every such case the net earnings (or net losses) of such property
(ascertained in like manner as above provided) during said period, or
during such part thereof as shall have preceded the acquisition of such
property by the Company, shall be considered and treated as net earnings
(or net losses) of the Company for such period, and shall be included in
(or, if a net loss, deducted in determining) such net earnings of the
Company;
(iii) "permanent property" shall mean any and all plants,
equipment, additions, improvements, betterments, facilities, or other
property of any kind (and includes "extensions" and "purchased
property" as those terms are used in the Mortgage) acquired through
construction, purchase, consolidation, exchange or otherwise, as and
for a part of the permanent or fixed investment for the business of
the Company and used or useful in connection with the generation and
conversion of electrical energy or in the manufacture of gas or steam
or in the distribution or transmission of electrical energy or gas or
steam in the territory in which the Company is now operating its
present properties, or in territory contiguous thereto, or in
territory capable of economic interconnection therewith, but
"permanent property" shall not include cash, accounts or bills
receivable, securities, supplies, fuel or other assets ordinarily
classed as quick assets, or leasehold estates;
(iv) "original cost" of property shall mean the original cost
of such property to the Company if ascertainable from its records or,
if such original cost is not ascertainable, the value of such property
at the time of its acquisition, such value to be determined by an
engineer or firm of engineers to be selected by the Company and to be
acceptable to the Trustee, and the Trustee under such circumstances
shall be furnished with a certificate of such value signed by such
engineer or firm of engineers.
(f) In connection with any request to the Trustee for the
authentication of bonds pursuant to the provisions of Section 5 of Article
III of the Mortgage or the payment of cash pursuant to the provisions of
Section 6 of said Article III or the provisions of Article IX of the
Mortgage or the elimination or compensation of any excess of the nature
described in subdivision (2) of Section 4 of said Article III, for or on
account of expenditures for "permanent property", the Company shall furnish
to the Trustee, in addition to the certificates and other documents
required to be delivered by the provisions of the Mortgage and the
provisions of other subparagraphs of this Section 1, the following:
36
(i) An opinion of counsel (who may be counsel for the
Company), selected by the Company and satisfactory to the Trustee,
stating that the Company has acquired good title to the property for
or on account of the expenditures for which additional bonds are
requested to be authenticated and that such property is subject to the
Mortgage as a direct lien thereon, subject only to the lien of any
mortgages or easements existing or placed on any of such property at
the time of its acquisition, liens for taxes and assessments not due
or, if due, in the course of contest, judgments in the course of
appeal or otherwise in contest and secured by sufficient bond, liens
arising out of proceedings in court in the course of contest and
undetermined liens charges (if any) incidental to current
construction; and
(ii) A certificate signed by the President or the Executive
Vice President or the Chief Financial Officer or a Vice President and
also by the Treasurer or an Assistant Treasurer of the Company
certifying that the property for or on account of the expenditures for
which bonds are requested to be authenticated or cash is requested to
be paid is "permanent property".
(g) The Company shall not hereafter issue any bonds under any
"underlying mortgage" as defined in Section 4 of Article III of the
Mortgage, or under any mortgage which could become such an "underlying
mortgage" upon compliance with clause (b) of the proviso of subdivision (2)
of said Section 4.
(h) The Company shall not request the Trustee to authenticate any
bonds under the provisions of Section 2 or Section 3 or Section 4 of
Article III of the Mortgage and shall not apply for the payment of cash
under Section 6 of said Article or under Article IX of the Mortgage (i) for
or on account of bonds of Series J deposited by the Company with the
Trustee in lieu of cash under the provisions of the sinking fund provided
for in the supplemental indenture, dated as of May 1, 1961, or for or on
account of bonds of Series J redeemed through the operation of said sinking
fund, or (ii) for or on account of bonds of Series K redeemed through the
operation of the sinking fund provided for in the supplemental indenture
dated as of July 15, 1966, or (iii) for or on account of bonds of Series L
redeemed through the operation of the sinking fund provided for in the
supplemental indenture dated as of August 15, 1967, or (iv) for or on
account of bonds of Series M redeemed through the operation of the sinking
fund provided for in the supplemental indenture dated as of September 15,
1970, or (v) for or on account of bonds of Series N redeemed through the
operation of the sinking fund provided for in the supplemental indenture
dated as of April 1, 1972, or (vi) for or on account of bonds of Series 0
redeemed through the operation of the sinking fund provided for in the
supplemental indenture dated as of July 15, 1973, or (vii) for or on
account of bonds of Series T redeemed through the operation of the sinking
fund provided for in the supplemental indenture dated as of August 15,
1980, or (viii) on account of any cancelled or
37
uncancelled underlying bonds (or any uncancelled underlying bonds deposited
as collateral under Section 4 of Article III of the Mortgage) which shall
have been deposited under the provisions of the supplemental indenture,
dated as of August 1, 1941, in lieu of cash.
(i) The Company shall promptly classify as "property replaced or
retired", for the purposes of clause (B) of subdivision (i) of subparagraph
(c) of this Section 1 during any period all property which has been
replaced or has permanently ceased to be used or useful in the business of
the Company, but the Company shall not, in making such classification, be
bound by determinations, rulings or orders made by regulatory authorities
for rate-making or other purposes.
(j) The Company shall not consolidate with or merge into any other
corporation or transfer or lease all or substantially all the mortgaged
property as an entirety to any other corporation, unless the corporation
resulting from such consolidation or the corporation into which the Company
shall have been merged or the corporation to which such transfer or lease
shall have been made shall, by an instrument executed and delivered to the
Trustee, assume the due and punctual payment of the principal of and
premium, if any, and interest on all the bonds of all series according to
their tenor at the time outstanding under the Mortgage and the due and
punctual performance and observance of all the covenants and conditions of
the Mortgage and all indentures supplemental thereto to be performed or
observed by the Company.
(k) The Company will pay all Additional Interest, if any, in the
manner on the dates and in the amounts as set forth in the Registration
Rights Agreement.
SECTION 2. The Company covenants and agrees that any and all property
hereafter acquired by the Company and any and all improvements, extensions,
betterments or additions to property of the Company, which by the Original
Mortgage or any indenture supplemental thereto are to become subject to the
Mortgage, immediately upon the acquisition thereof by the Company or upon such
improvements, extension, betterments, or addition being made, as the case may
be, and without any further conveyance, mortgage, assignment or act on the part
of the Company or the Trustee, or either of them shall become and be subject to
the lien of the Mortgage fully and completely as though owned by the Company at
the date of the execution of the Original Mortgage and at the date of the
Indenture dated the first day of March, 1928, mentioned in the second paragraph
of the recitals of this Supplemental Indenture and at the dates of the
supplemental indentures dated May 20, 1936, May 10, 1950, as of June 1, 1951, as
of August 15, 1967, as of September 15, 1970, as of March 1, 1985, as of April
1, 1993, as of December 1, 1993, as of December 1, 1993, as of June 1, 1995, as
of March 1, 2000, as of March 1, 2000, as of March 1, 2000, as of March 1, 2000,
as of February 1, 2003 and as of February 1, 2003 respectively, mentioned in the
fourth paragraph of the recitals of this Supplemental Indenture, and at the date
of this Supplemental Indenture, and specifically described in the granting
clauses of the Original Mortgage or said
38
Indenture or said supplemental indentures, but the provisions of this Section 2
shall not limit the generality of the provisions of Sections 12 and 13 of
Article IV of the Original Mortgage.
SECTION 3. The Company covenants and agrees that in the furtherance
of, but without limiting the generality of, the provisions of Sections 12 and 13
of Article IV of the Mortgage or of Section 2 of this Article II, the Company
will furnish to the Trustee on November 1, 1944, and thereafter within sixty
(60) days after and as often as the Company shall have acquired, subsequent to
September 3, 1944, any additional land or lands or interest or interests in
land, or any new plant or plants, not included in any certificate theretofore
furnished pursuant to this Section 3, the aggregate cost of which shall equal or
exceed $500,000, and at such other times as thirty-six (36) months shall have
elapsed since the date of furnishing the last preceding certificate to the
Trustee pursuant to this Section 3, the following:
(a) a certificate, signed by the President or the Executive Vice
President or the Chief Financial Officer or a Vice President and by the
Treasurer or an Assistant Treasurer of the Company and dated as of a date
not more than sixty (60) days preceding the date as of which such
certificate is required to be filed pursuant to this Section 3, briefly
describing any additional land or interest in land and any new plant which
the Company may have acquired since the date of the most recent Certificate
furnished to the Trustee pursuant to this Section, or, in the case of the
first such certificate, since the date of the execution and delivery of the
Indenture dated the first day of March, 1928 mentioned in the second
paragraph of the recitals of this Supplemental Indenture, which is required
by the provisions of the Mortgage and this Supplemental Indenture to be
subjected to the lien of the Mortgage;
(b) the mortgages, deeds, covenants, assignments, transfers and
instruments of further assurance, if any, specified in the opinion of
counsel referred to in the following subparagraph (c); and
(c) an opinion of counsel, who may be counsel for the Company,
specifying the mortgages, deeds, covenants, assignments, transfers and
instruments of further assurance which will be sufficient to subject to the
direct lien of the Mortgage (so far as permitted by law) all the Company's
right, title and interest in and to the land and interest in land and any
plant described in said certificate, or stating that no such mortgage,
deed, conveyance, assignment, transfer or instrument of further assurance
is necessary for such purpose, and that, upon the recordation or filing or
registering, in the manner stated in such opinion, of the instruments so
specified, if any, and upon the recordation and filing and registering of
the Mortgage or any supplemental indenture in the manner stated in such
opinion, or without any such recordation or filing or registering if such
opinion shall so state, the Mortgage will (so far as permitted by law)
constitute a valid lien upon all the Company's right, title and interest in
and to such land, interest in land or plant as against all creditors and
subsequent purchasers, subject
39
only to the lien of any mortgages or easements existing or placed on such
property at the time of its acquisition by the Company, liens for taxes and
assessments not due, or, if due, in the course of appeal or otherwise in
contest, liens arising out of proceedings in court in the course of contest
and undetermined liens and charges (if any) incidental to current
construction.
For the purposes of this Section 3, any certificate heretofore or hereafter
delivered to the Trustee pursuant to Section 3 of Article III of Division B of
the supplemental indenture dated as of June 1, 1951, or pursuant to Section 3 of
Article II of the Supplemental Indenture dated as of July 1, 1954, or pursuant
to Section 3 of Article III of the supplemental indenture dated as of May 1,
1961, or pursuant to Section 3 of Article III of the supplemental indenture
dated as of July 15, 1966, or pursuant to Section 3 of Article III of the
supplemental indenture dated as of August 15, 1967, or pursuant to Section 3 of
Article III of the supplemental indenture dated as of September 15, 1970, or
pursuant to Section 3 of Article III of the supplemental indenture dated as of
April 1, 1972, or pursuant to Section 3 of Article III of the supplemental
indenture dated as of July 15, 1973, or pursuant to Section 3 of Article II of
the Supplemental Indenture dated as of October 1, 1973, or pursuant to Section 3
of Article II of the Supplemental Indenture dated as of October 1, 1974, or
pursuant to Section 3 of Article II of the Supplemental Indenture dated as of
December 1, 1974, or pursuant to Section 3 of Article II of the Supplemental
Indenture dated as of April 1, 1975, or pursuant to Section 3 of Article III of
the Supplemental Indenture dated as of August 15, 1980, or pursuant to Section 3
of Article II of the supplemental indenture dated as of June 1, 1984, or
pursuant to Section 3 of Article II of the supplemental indenture dated as of
June 1, 1984, or pursuant to Section 3 of Article II of the supplemental
indenture dated as of October 1, 1984, or pursuant to Section 3 of Article II of
the supplemental indenture dated as of March 1, 1985, or pursuant to Section 3
of Article II of the supplemental indenture dated as of March 1, 1985, or
pursuant to Section 3 of Article II of the supplemental indenture dated as of
March 1, 1985, or pursuant to Section 3 of Article II of the supplemental
indenture dated as of March 1, 1985, or pursuant to Section 3 of Article II of
the supplemental indenture dated as of May 1, 1990, or pursuant to Section 3 of
Article II of the supplemental indenture dated as of April 1, 1993, or pursuant
to Section 3 of Article II of the supplemental indenture dated as of December 1,
1993, or pursuant to Section 3 of Article II of the supplemental indenture dated
as of December 1, 1993, or pursuant to Section 3 of Article II of the
supplemental indenture dated as of June 1, 1995, or pursuant to Section 3 of
Article II of the supplemental indenture dated as of March 1, 2000, or pursuant
to Section 3 of Article II of the supplemental indenture dated as of March 1,
2000, or pursuant to Section 3 of Article II of the supplemental indenture dated
as of March 1, 2000, or pursuant to Section 3 of Article II of the supplemental
indenture dated as of March 1, 2000 or pursuant to Section 3 of Article II of
the supplemental indenture dated as of February 1, 2003 or pursuant to Section 3
of Article II of the supplemental indenture dated as of February 1, 2003 shall
be deemed to have been delivered in compliance with this Section 3.
SECTION 4. The Company covenants and agrees that, upon cancellation and
discharge of any "prior lien", the Company shall cause all cash or obligations
then held
40
by the trustee or other holder of such prior lien, which were received by such
trustee or other holder by reason of the release of, or which represent the
proceeds of the taking by eminent domain or any disposition of, or the proceeds
of insurance on, any of the properties at any time subject to the lien of the
Mortgage (including all proceeds of or substitutions for any thereof), to be
paid to or deposited and pledged with the Trustee, subject to any lien or charge
prior to the lien of the Mortgage, such cash to be held and paid over or applied
by the Trustee, and such obligations to be held and disposed of, as provided in
Article IX of the Mortgage; provided, however, that in lieu of taking or
delivering to the Trustee all or any part of such cash or obligations, the
Company may deliver to the Trustee a certificate of the trustee or such other
holder of such prior lien, stating that a specified amount thereof has been
deposited with such trustee or other holder pursuant to the requirements of such
other prior lien, in which case there shall also be delivered to the Trustee an
opinion of counsel, who may be counsel for the Company, stating that such
deposit is required by such other prior lien. The term "prior lien" as used in
this Section 4 shall mean and include any "underlying mortgage" and shall also
mean and include any other lien (except liens for taxes and assessments not due,
or, if due, in the course of appeal or otherwise in contest, liens arising out
of proceedings in court in course of contest and undetermined liens and charges,
if any, incidental to current construction) prior to the lien of the Mortgage
upon property acquired by the Company after the execution and delivery of the
Indenture, dated the first day of March, 1928, referred to in the second
paragraph of the recitals of this Supplemental Indenture, existing on said
property or placed thereon to secure unpaid portions of the purchase price, at
the time of such acquisition.
ARTICLE III
AMENDMENT OF MORTGAGE
Section 1 of Article X of the Mortgage is hereby amended by inserting in said
section immediately preceding the words "then, and in each and every such case,
the Trustee", the following:
"or in case the Company shall be adjudicated a bankrupt by any court of
competent jurisdiction or shall file a voluntary petition in bankruptcy or
shall make an assignment for the benefit of creditors or shall admit in
writing its inability to pay its debts as they become due; or in case the
Company shall consent to the appointment of a receiver or trustee of all or
a substantial part of the mortgaged property; or in case the Company shall
file a petition under the federal bankruptcy laws, or any other applicable
law or statute of the United States of
41
America or of any state thereof; or in case the Company shall file a
petition or take advantage of any insolvency act; or in case, during a
period of sixty (60) days following (1) the entry of an order approving a
petition of some person other than the Company, seeking reorganization of
the Company under the federal bankruptcy laws or any other applicable
statute of the United States of America or any state thereof, or (2) the
appointment of a trustee or a receiver of all or a substantial part of the
mortgaged property, such order or appointment of a trustee or receiver
shall not be vacated or shall not be stayed on appeal or otherwise shall
not have otherwise ceased to continue in effect;"
The amendment to Section 1 of Article X of the Mortgage which is contained in
this Article III shall survive the redemption, retirement, cancellation or
defeasance of all of the bonds of Series MM.
ARTICLE IV
MISCELLANEOUS
SECTION 1. The Trustee hereby accepts the trusts hereunder and agrees to
perform the same upon the terms and subject to the applicable provisions of the
Mortgage and the indentures supplemental thereto now in effect.
SECTION 2. This Supplemental Indenture is executed by the parties hereto
pursuant to the provisions of Article XVI of the Mortgage, and so long as any of
the bonds of Series MM are or shall be outstanding the terms and conditions of
this Supplemental Indenture shall be deemed to be a part of the terms and
conditions of the Mortgage for any and all purposes. The provisions of this
Supplemental Indenture shall be inapplicable and shall terminate and become void
and of no effect upon the payment or redemption of all of the bonds of Series MM
in accordance with the provisions of the Mortgage and of the bonds of Series MM.
SECTION 3. All covenants, conditions and provisions contained in this
Supplemental Indenture by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not, legally or equitably under or by
reason of this Supplemental Indenture.
SECTION 4. Although this Supplemental Indenture is dated as of February
15, 2003, it shall be effective only from the actual time of its execution and
delivery by the Company and the Trustee on the date indicated by their
respective acknowledgments hereto annexed.
This Supplemental Indenture may be simultaneously executed in any number of
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument entered into by the
parties hereto pursuant to the provisions of Article XVI of the Mortgage.
42
IN WITNESS WHEREOF, THE PEOPLES GAS LIGHT AND COKE COMPANY has caused this
instrument to be executed in its corporate name by its Chairman, President, the
Executive Vice President, the Chief Financial Officer or a Vice President, and
its corporate seal to be hereunto affixed and attested by its Secretary or an
Assistant Secretary all as of the day and year first above written.
THE PEOPLES GAS LIGHT AND COKE COMPANY
By /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President, Chief Financial Officer and
Treasurer
ATTEST:
/s/ X.X. Xxxxxx
------------------------
X.X. Xxxxxx
Assistant Secretary
43
IN WITNESS WHEREOF, U.S. Bank National Association, as Trustee under the
Mortgage, has caused this instrument to be executed in its corporate name by one
of its Assistant Vice Presidents and attested by any Assistant Vice President,
all as of the day and year first above written.
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxx-Xxx Xxxxxxxxx
---------------------------
Xxxx-Xxx Xxxxxxxxx
---------------------------
Assistant Vice President
---------------------------
ATTEST:
/s/ Xxxxx Eddingtor
------------------------------
Xxxxx Eddingtor
------------------------------
Assistant Vice President
------------------------------
44
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
I, Xxxxxxx Xxxxxxx, a Notary Public in and for said County and State
aforesaid, DO HEREBY CERTIFY that XXXXXX X. XXXXX, the Senior Vice President,
Chief Financial Officer and Treasurer of The Peoples Gas Light and Coke Company,
an Illinois corporation, and XXXX X. XXXXXX, Assistant Secretary of said
corporation, who are both personally known to me to be the same persons whose
names are subscribed to the foregoing instrument as such Senior Vice President,
Chief Financial Officer and Treasurer and Assistant Secretary, respectively, and
who are both personally known to me to be the Senior Vice President, Chief
Financial Officer and Treasurer and Assistant Secretary, respectively, of said
corporation, appeared before me this day in person and severally acknowledged
that they signed, sealed and delivered said instrument as their free and
voluntary act as such Senior Vice President, Chief Financial Officer and
Treasurer and Assistant Secretary, respectively, of said corporation, and as the
free and voluntary act of said corporation, for the uses and purposes therein
set forth.
GIVEN under my hand and notarial seal this 26 day of February, 2003.
/s/ Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx
---------------------------
Notary Public
My commission expires on the 29 day of February, 0000
0
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF XXXX )
I, Xxxxx X. Xxxxx a Notary Public in and for said County and State
aforesaid, DO HEREBY CERTIFY that Xxxx-Xxx Xxxxxxxxx, an Assistant Vice
President of U.S. Bank National Association, a corporation organized under the
laws of the United States of America, and Xxxxx Xxxxxxxxx, an Assistant Vice
President of said corporation, who are both personally known to me to be the
same persons whose names are subscribed to the foregoing instrument as such
Assistant Vice President, respectively, and who are both personally known to me
to be an Assistant Vice President of said corporation, appeared before me this
day in person and severally acknowledged that they signed, sealed and delivered
said instrument as their free and voluntary act as Assistant Vice President,
respectively, of said corporation, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 25th day of February, 2003.
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
---------------------------
Notary Public
My commission expires January 31, 2005
2
SCHEDULE 1
EASEMENTS AND OTHER INTERESTS IN LAND
1. All rights of way, easements, franchises, licenses, permits,
privileges, leases, leaseholds and other authority granted to the Company for
the purpose of constructing, installing, operating, using, maintaining,
renewing, replacing or relocating gas mains, pipelines, services and other
facilities on, over or in private property owned by others and situated in the
County of Xxxx in the State of Illinois, including, without limiting the
generality of the foregoing, those certain easements granted to the Company by
the grantors hereinafter named and filed for record and recorded as hereinafter
set forth, to wit:
PERMANENT DATE
FILE DOCUMENT INDEX OF DATE
GRANTOR NUMBER NUMBER NUMBER INSTRUMENT RECORDED
----------------------------- ------ -------- ------------------ ---------- --------
Xxxxxxxxxx Enterprises, Inc. Portions of 02/20/03
11-07-100-013-0010
11-07-100-013-0020
11-07-200-009-0010
EXHIBIT A
(Form of Series MM-1 Registered Bond Without Coupons)
ICC Identification No. 6204
No. R__________ $_______
THE PEOPLES GAS LIGHT AND COKE COMPANY
FIRST AND REFUNDING MORTGAGE 4% BOND,
SERIES MM-1
DUE March 1, 2010
THE PEOPLES GAS LIGHT AND COKE COMPANY, an Illinois corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to . . . . . .
. . . . . . . . . . . . . . . . . . ., or registered assigns on March 1, 2010,
unless this Bond shall have been called for redemption and payment of the
redemption price shall have been duly made or provided for in accordance with
the hereinafter described Mortgage, the principal sum of . . . . . . . . . . . .
Dollars ($__________), and to pay interest on the balance of said principal sum
from time to time remaining unpaid from the March 1 or September 1 to which
interest has been paid next preceding the date of authentication of this Bond,
unless this Bond is authenticated on a March 1 or September 1 to which interest
has been paid, in which event this Bond shall bear interest from such March 1 or
September 1, or unless no interest has been paid on this Bond, in which event
this Bond shall bear interest from the date hereof, at the rate of four percent
(4%) per annum (calculated on the basis of a year of 360 days consisting of
twelve 30-day months), payable at or before 9:00 a.m., Chicago time, on March 1
and September 1 of each year, commencing September 1, 2003 until payment in full
of such principal sum PROVIDED, however, that if a Registration Default (as
defined in the Registration Rights Agreement by and among the Company and the
Initial Purchaser (as defined therein), dated as of February 19, 2003) occurs,
additional interest will accrue on this Bond at a rate of 0.25% per annum
(increasing by an additional 0.25% per annum after each consecutive 90-day
period that occurs, after the date on which such Registration Default occurs up
to a maximum additional interest rate of 1.00% per annum) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Interest shall also
accrue on any overdue principal, premium, if any, and (to the extent that such
interest shall be legally enforceable) on any overdue installment of interest
until paid at the same rate per annum. The interest so payable on any interest
payment date will, subject to certain exceptions provided in the Mortgage, be
paid to the person who is the registered owner of this Bond at the close of
business on the applicable record date next preceding such interest payment
date. Principal of, premium, if any, and
A-1
interest on this Bond shall be payable in lawful money of the United States of
America at the principal corporate office or agency of the Company in Chicago,
Illinois.
This Bond is one of the First and Refunding Mortgage Bonds of the Company,
all issued and to be issued in series, from time to time, under and in
accordance with and, irrespective of the time of issue or of the series in which
issued or the designation thereof, equally secured by an Indenture, dated the
second day of January, 1926, executed by Chicago By-Product Coke Company, a
Delaware corporation, to Illinois Merchants Trust Company, as trustee, and
recorded on January 19, 1926, as Document No. 9154395 in Book 22219 of Records,
at page 283, in the Recorder's Office of Xxxx County, Illinois, which Indenture
was assumed by the Company as a successor corporation, as defined therein, by an
indenture, dated the first day of March, 1928, executed by the Company to said
trustee, and recorded on April 7, 1928, as Document No. 9980547 in Book 25701 of
Records, at page 599, in the Recorder's Office of Xxxx County, Illinois, and has
heretofore been, and from time to time hereafter may be, amended and
supplemented by indentures supplemental thereto, including the Supplemental
Indenture dated as of February 15, 2003 relating to the hereinafter described
Series MM-1 Bonds (the "Supplemental Indenture"). Unless otherwise defined
herein, all capitalized terms used herein shall have the meanings ascribed
thereto in the Supplemental Indenture. The word "Mortgage", as used in this
Bond, shall mean said Indenture, as amended and supplemented from time to time
by indentures supplemental thereto, including the Supplemental Indenture. The
word "Company", as used in this Bond, shall be construed to include any
successor corporation, as defined in the Mortgage. The word "Trustee", as used
in this Bond, shall be construed to mean and include U.S. Bank National
Association (successor to Illinois Merchants Trust Company), as trustee under
the Mortgage, and any successor trustee thereunder. Reference is hereby made to
the Mortgage and all indentures supplemental thereto for a description of the
property mortgaged and pledged (except that certain parcels described in the
Mortgage and in said supplemental indentures have been released from the lien of
the Mortgage pursuant to the terms thereof), the nature and extent of the
security and the terms and conditions governing the issuance and security of the
bonds issued or to be issued under the Mortgage. As provided in the Mortgage,
the bonds may be for various principal sums, are issuable in series, may bear
interest at different rates and may otherwise vary as provided therein. This
Bond is one of the series of such First and Refunding Mortgage Bonds designated
as "The Peoples Gas Light and Coke Company First and Refunding Mortgage 4%
Bonds, Series MM-1", hereinafter called the "Series MM-1 Bonds".
The Series MM-1 Bonds shall be deliverable in the form of registered Bonds
without coupons in the denominations of $1,000 and any integral multiple
thereof.
As more fully described in the Supplemental Indenture, the Company reserves
the right, without any consent or other action by holders of the Series MM-1
Bonds or the bonds of any subsequent series, to amend the Mortgage to provide
that the Mortgage, the rights and obligations of the Company and the rights of
the bondholders may be modified with the consent of the holders of not less than
60% in aggregate principal
A-2
amount of the bonds adversely affected; provided, however, that no modification
shall (1) extend the time, or reduce the amount, of any payment on any bond,
without the consent of the holder of each bond so affected, (2) permit the
creation of any lien, not otherwise permitted, prior to or on a parity with the
lien of the Mortgage, without the consent of the holders of all bonds then
outstanding, or (3) reduce the above percentage of the principal amount of bonds
the holders of which are required to approve any such modification without the
consent of the holders of all bonds then outstanding.
The Series MM-1 Bonds are subject to optional redemption by the Company, in
whole but not in part, at any time, at a redemption price of 100% of the
principal amount thereof, plus accrued interest, if any, to the redemption date,
upon the occurrence of certain events described in the Supplemental Indenture
(relating to unreasonable burdens or excessive liabilities imposed upon the
Company; changes in the economic availability of raw materials, operating
supplies, fuel or other energy sources or supplies or technological or other
changes rendering its property uneconomic; court order or decree preventing
operations at its property or rendering the continuation of its operations
economically unfeasible).
All of the outstanding Series MM-1 Bonds may be redeemed at any time by the
Company, by the payment of the principal amount thereof and accrued interest
thereon to the date of redemption, without the payment of any premium, in the
event of the acquisition by any federal, state or municipal authority of any
substantial portion (which shall be not less than one-third as determined by
book values) of the income-producing properties of the Company which are subject
to the lien of the Mortgage.
All of the outstanding bonds under the Mortgage shall be redeemed by the
Company by the payment of the respective applicable redemption price or prices
and accrued interest thereon to the date of redemption, without the payment of
any premium, in the event of the acquisition by any federal, state or municipal
authority of all or substantially all of the income-producing properties of the
Company which are subject to the lien of the Mortgage.
Notice of any redemption of the Series MM-1 Bonds shall be given by mailing
by first-class mail, postage prepaid, at least thirty (30) days and not more
than sixty (60) days prior to the redemption date, to the holders of all such
bonds to be redeemed at their last addresses that shall appear upon the registry
book, all as more fully provided in the Mortgage. Notice of redemption having
been duly given, the bonds called for redemption shall become due and payable
upon the redemption date and, if the redemption price shall have been deposited
with the Trustee, interest thereon shall cease to accrue on and after the
redemption date, and whenever the redemption price thereof shall have been
deposited with the Trustee and notice of redemption shall have been duly given
or provision therefore made, such bonds shall no longer be entitled to any lien
or benefit of the Mortgage.
In case of certain events of default specified in the Mortgage, the
principal of all bonds issued and outstanding thereunder may be declared or may
become due and
A-3
payable in the manner and with the effect provided in the Mortgage.
No recourse shall be had for the payment of the principal of or interest on
this Bond, or for any claim based hereon, or otherwise in respect hereof or of
the Mortgage, to or against any incorporator, stockholder, director or officer,
past, present or future, of the Company, either directly or through the Company,
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,
stockholders, directors and officers being released by the holder hereof by the
acceptance of this Bond, and being likewise waived and released by the terms of
the Mortgage.
This Bond is transferable by the registered holder hereof in person or by a
duly authorized attorney at the office or agency of the Company in the City of
Chicago, State of Illinois, upon surrender and cancellation of this Bond, and
thereupon a new registered bond or bonds, without coupons, of the same series
and for the same aggregate principal amount will be issued to the transferee in
exchange herefor. In the manner provided in the Mortgage, registered Bonds
without coupons of this series may, at the option of the registered owner and
upon surrender at said office or agency of the Company, be exchanged for
registered Bonds without coupons of this series of the same aggregate principal
amount of other authorized denominations.
The Company and 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 payment and for all other purposes and neither the
Company nor the Trustee nor any paying agent shall be affected by any notice to
the contrary.
In addition to the rights provided to Holders of Bonds under the Mortgage,
Holders of Restricted Global Bonds and Restricted Definitive Bonds will have all
the rights set forth in the Registration Rights Agreement dated as of February
19, 2003, between the Company and the Initial Purchaser.
This Bond shall not be entitled to any security or benefit under the
Mortgage, and shall not become valid or obligatory for any purpose, until this
Bond shall have been authenticated by the execution of the certificate, hereon
endorsed, by the Trustee or its successor in trust under the Mortgage.
A-4
IN WITNESS WHEREOF, the Company has caused this Bond to be executed in its
name by its President, Executive Vice President, Chief Financial Officer,
Treasurer or a Vice President manually or in facsimile, and has caused its
corporate seal manually or in facsimile to be hereto affixed, attested by the
manual or facsimile signature of its Secretary or of an Assistant Secretary.
Dated:
---------------
THE PEOPLES GAS LIGHT AND COKE COMPANY
By:
------------------------
Its:
------------------------
Attest:
By:
-------------------
Its:
-------------------
(Form of Trustee's Certificate)
This bond is one of the bonds of the series designated, referred to and
described in the within-mentioned Mortgage.
U.S. BANK NATIONAL ASSOCIATION
By
-------------------
Authorized Officer.
A-5
ASSIGNMENT
For value received, the undersigned hereby sell(s) and transfer(s) unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:_____________________________
____________________________________________________________
____________________________________________________________
(Please print or typewrite name and address, including zip code of assignee)
the within Bond and all rights thereunder, hereby irrevocably constituting and
appointing __________________ Attorney to transfer said Note on the books of the
Trustee with full power of substitution in the premises.
Dated:
------------------------ --------------------------
Notice: The signature to
this Assignment must correspond
with the name as written upon
the face of the within instrument
in every particular, without
alteration or enlargement, or any
changes whatever.
A-6
EXHIBIT B
(Form of Series MM-2 Registered Bond Without Coupons)
ICC Identification No. 6204
No. R__________ $_______
THE PEOPLES GAS LIGHT AND COKE COMPANY
FIRST AND REFUNDING MORTGAGE 4% BOND,
SERIES MM-2
DUE March 1, 2010
THE PEOPLES GAS LIGHT AND COKE COMPANY, an Illinois corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to. . . . . .
.. . . . . . . . . . . . . . . . . . . ., or registered assigns on March 1, 2010,
unless this Bond shall have been called for redemption and payment of the
redemption price shall have been duly made or provided for in accordance with
the hereinafter described Mortgage, the principal sum of . . . . . . . . . . . .
Dollars ($__________), and to pay interest on the balance of said principal sum
from time to time remaining unpaid from the March 1 or September 1 to which
interest has been paid next preceding the date of authentication of this Bond,
unless this Bond is authenticated on a March 1 or September 1 to which interest
has been paid, in which event this Bond shall bear interest from such March 1 or
September 1, or unless no interest has been paid on this Bond, in which event
this Bond shall bear interest from the date hereof, at the rate of four percent
(4%) per annum (calculated on the basis of a year of 360 days consisting of
twelve 30-day months), payable at or before 9:00 a.m., Chicago time, on March 1
or September 1 of each year, commencing September 1, 2003 until payment in full
of such principal sum. Interest shall also accrue on any overdue principal,
premium, if any, and (to the extent that such interest shall be legally
enforceable) on any overdue installment of interest until paid at the same rate
per annum. The interest so payable on any interest payment date will, subject to
certain exceptions provided in the Mortgage, be paid to the person who is the
registered owner of this Bond at the close of business on the applicable record
date next preceding such interest payment date (February 15 or August 15, as the
case may be). Principal of, premium, if any, and interest on this Bond shall be
payable in lawful money of the United States of America at the principal
corporate office or agency of the Company in Chicago, Illinois.
This Bond is one of the First and Refunding Mortgage Bonds of the Company,
all issued and to be issued in series, from time to time, under and in
accordance with
B-1
and, irrespective of the time of issue or of the series in which issued or the
designation thereof, equally secured by an Indenture, dated the second day of
January, 1926, executed by Chicago By-Product Coke Company, a Delaware
corporation, to Illinois Merchants Trust Company, as trustee, and recorded on
January 19, 1926, as Document No. 9154395 in Book 22219 of Records, at page 283,
in the Recorder's Office of Xxxx County, Illinois, which Indenture was assumed
by the Company as a successor corporation, as defined therein, by an indenture,
dated the first day of March, 1928, executed by the Company to said trustee, and
recorded on April 7, 1928, as Document No. 9980547 in Book 25701 of Records, at
page 599, in the Recorder's Office of Xxxx County, Illinois, and has heretofore
been, and from time to time hereafter may be, amended and supplemented by
indentures supplemental thereto, including the Supplemental Indenture dated as
of February 15, 2003 relating to the hereinafter described Series MM-2 Bonds
(the "Supplemental Indenture"). Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings ascribed thereto in the Supplemental
Indenture. The word "Mortgage", as used in this Bond, shall mean said Indenture,
as amended and supplemented from time to time by indentures supplemental
thereto, including the Supplemental Indenture. The word "Company", as used in
this Bond, shall be construed to include any successor corporation, as defined
in the Mortgage. The word "Trustee", as used in this Bond, shall be construed to
mean and include U.S. Bank National Association (successor to Illinois Merchants
Trust Company), as trustee under the Mortgage, and any successor trustee
thereunder. Reference is hereby made to the Mortgage and all indentures
supplemental thereto for a description of the property mortgaged and pledged
(except that certain parcels described in the Mortgage and in said supplemental
indentures have been released from the lien of the Mortgage pursuant to the
terms thereof), the nature and extent of the security and the terms and
conditions governing the issuance and security of the bonds issued or to be
issued under the Mortgage. As provided in the Mortgage, the bonds may be for
various principal sums, are issuable in series, may bear interest at different
rates and may otherwise vary as provided therein. This Bond is one of the series
of such First and Refunding Mortgage Bonds designated as "The Peoples Gas Light
and Coke Company First and Refunding Mortgage 4% Bonds, Series MM-2",
hereinafter called the "Series MM-2 Bonds".
The Series MM-2 Bonds shall be deliverable in the form of registered Bonds
without coupons in the denominations of $1,000 and any integral multiple
thereof.
As more fully described in the Supplemental Indenture, the Company reserves
the right, without any consent or other action by holders of the Series MM-2
Bonds or the bonds of any subsequent series, to amend the Mortgage to provide
that the Mortgage, the rights and obligations of the Company and the rights of
the bondholders may be modified with the consent of the holders of not less than
60% in aggregate principal amount of the bonds adversely affected; provided,
however, that no modification shall (1) extend the time, or reduce the amount,
of any payment on any bond, without the consent of the holder of each bond so
affected, (2) permit the creation of any lien, not otherwise permitted, prior to
or on a parity with the lien of the Mortgage, without the consent of the holders
of all bonds then outstanding, or (3) reduce the above percentage
B-2
of the principal amount of bonds the holders of which are required to approve
any such modification without the consent of the holders of all bonds then
outstanding.
The Series MM-2 Bonds are subject to optional redemption by the Company, in
whole but not in part, at any time, at a redemption price of 100% of the
principal amount thereof, plus accrued interest, if any, to the redemption date,
upon the occurrence of certain events described in the Supplemental Indenture
(relating to unreasonable burdens or excessive liabilities imposed upon the
Company; changes in the economic availability of raw materials, operating
supplies, fuel or other energy sources or supplies or technological or other
changes rendering its property uneconomic; court order or decree preventing
operations at its property or rendering the continuation of its operations
economically unfeasible).
All of the outstanding Series MM-2 Bonds may be redeemed at any time by the
Company, by the payment of the principal amount thereof and accrued interest
thereon to the date of redemption, without the payment of any premium, in the
event of the acquisition by any federal, state or municipal authority of any
substantial portion (which shall be not less than one-third as determined by
book values) of the income-producing properties of the Company which are subject
to the lien of the Mortgage.
All of the outstanding bonds under the Mortgage shall be redeemed by the
Company by the payment of the respective applicable redemption price or prices
and accrued interest thereon to the date of redemption, without the payment of
any premium, in the event of the acquisition by any federal, state or municipal
authority of all or substantially all of the income-producing properties of the
Company which are subject to the lien of the Mortgage.
Notice of any redemption of the Series MM-2 Bonds shall be given by mailing
by first-class mail, postage prepaid, at least thirty (30) days and not more
than sixty (60) days prior to the redemption date, to the holders of all such
bonds to be redeemed at their last addresses that shall appear upon the registry
book, all as more fully provided in the Mortgage. Notice of redemption having
been duly given, the bonds called for redemption shall become due and payable
upon the redemption date and, if the redemption price shall have been deposited
with the Trustee, interest thereon shall cease to accrue on and after the
redemption date, and whenever the redemption price thereof shall have been
deposited with the Trustee and notice of redemption shall have been duly given
or provision therefore made, such bonds shall no longer be entitled to any lien
or benefit of the Mortgage.
In case of certain events of default specified in the Mortgage, the
principal of all bonds issued and outstanding thereunder may be declared or may
become due and payable in the manner and with the effect provided in the
Mortgage.
No recourse shall be had for the payment of the principal of or interest on
this Bond, or for any claim based hereon, or otherwise in respect hereof or of
the Mortgage, to or against any incorporator, stockholder, director or officer,
past, present or future, of
B-3
the Company, either directly or through the Company, 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, stockholders, directors and
officers being released by the holder hereof by the acceptance of this Bond, and
being likewise waived and released by the terms of the Mortgage.
This Bond is transferable by the registered holder hereof in person or by a
duly authorized attorney at the office or agency of the Company in the City of
Chicago, State of Illinois, upon surrender and cancellation of this Bond, and
thereupon a new registered bond or bonds, without coupons, of the same series
and for the same aggregate principal amount will be issued to the transferee in
exchange herefor. In the manner provided in the Mortgage, registered Bonds
without coupons of this series may, at the option of the registered owner and
upon surrender at said office or agency of the Company, be exchanged for
registered Bonds without coupons of this series of the same aggregate principal
amount of other authorized denominations.
The Company and 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 payment and for all other purposes and neither the
Company nor the Trustee nor any paying agent shall be affected by any notice to
the contrary.
In addition to the rights provided to Holders of Bonds under the Mortgage,
Holders of Restricted Global Bonds and Restricted Definitive Bonds will have all
the rights set forth in the Registration Rights Agreement dated as of February
19, 2003, between the Company and the Initial Purchaser.
This Bond shall not be entitled to any security or benefit under the
Mortgage, and shall not become valid or obligatory for any purpose, until this
Bond shall have been authenticated by the execution of the certificate, hereon
endorsed, by the Trustee or its successor in trust under the Mortgage.
B-4
IN WITNESS WHEREOF, the Company has caused this Bond to be executed in its
name by its President, Executive Vice President, Chief Financial Officer,
Treasurer or a Vice President manually or in facsimile, and has caused its
corporate seal manually or in facsimile to be hereto affixed, attested by the
manual or facsimile signature of its Secretary or of an Assistant Secretary.
Dated:
---------------
THE PEOPLES GAS LIGHT AND COKE COMPANY
By:
-----------------------
Its:
-----------------------
Attest:
By:
--------------------
Its:
--------------------
(Form of Trustee's Certificate)
This bond is one of the bonds of the series designated, referred to and
described in the within-mentioned Mortgage.
U.S. BANK NATIONAL ASSOCIATION
By
------------------
Authorized Officer.
B-5
ASSIGNMENT
For value received, the undersigned hereby sell(s) and transfer(s) unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE: _____________________________________
___________________________________________________________________
___________________________________________________________________
(Please print or typewrite name and address, including zip code of assignee)
the within Bond and all rights thereunder, hereby irrevocably constituting and
appointing _____________ Attorney to transfer said Note on the books of the
Trustee with full power of substitution in the premises.
Dated:
---------------- --------------------------
Notice: The signature to
this Assignment must correspond
with the name as written upon
the face of the within instrument
in every particular, without
alteration or enlargement, or any
changes whatever.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
The Peoples Gas Light and Coke Company
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S. Bank National Association
U.S. Bank Trust Center
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 4% First and Refunding Mortgage Bonds, Series MM-1 due March 1, 2010
Reference is hereby made to the Supplemental Indenture dated as of February
15, 2003, between The Peoples Gas Light and Coke Company, as issuer (the
"COMPANY") and U.S. Bank National Association, as trustee (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
Bond[s] or interest in such Bond[s] specified in Annex A hereto, in the
principal amount of $___________ in such Bond[s] or interests (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 THE
144A 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 Securities
Act of 1933, as amended (the "SECURITIES ACT"), and, accordingly, the Transferor
hereby further certifies that the beneficial interest or Definitive Bond is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or 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 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 144A Global Bond and/or the Definitive Bond and in the
Indenture and the Securities Act.
C-1
2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
REGULATION S TEMPORARY GLOBAL BOND, THE REGULATION S PERMANENT 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 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 Restricted Period, 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). 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 Regulation S Permanent Global Bond,
the Regulation S Temporary Global Bond and/or the Definitive Bond and in the
Indenture and the Securities Act.
3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A DEFINITIVE BOND PURSUANT TO ANY PROVISION OF THE SECURITIES ACT
OTHER THAN REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global
Bonds and Restricted Definitive Bonds and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of 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
C-2
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
Restricted Global Bonds, on Restricted 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 Restricted Global Bonds, on Restricted
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 or Definitive Bond will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Bonds or Restricted 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:
--------------------
C-3
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 the:
(i) " 144A Global Bond or
(ii) " Regulation S Permanent Global Bond, or
(iii) " Regulation S Temporary Global Bond, or
(b) " a Restricted Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) " a beneficial interest in the:
(i) " 144A Global Bond, or
(ii) " Regulation S Permanent Global Bond, or
(iii) " Regulation S Temporary Global Bond, or
(iv) " Unrestricted Global Bond; or
(b) " a Restricted Definitive Bond; or
(c) " an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
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EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
The Peoples Gas Light and Coke Company
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S. Bank National Association
U.S. Bank Trust Center
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 4% First and Refunding Mortgage Bonds, Series MM-1 due March 1, 2010
Reference is hereby made to the Supplemental Indenture dated as of February
15, 2003, between The Peoples Gas Light and Coke Company, as issuer (the
"COMPANY") and U.S. Bank National Association, as trustee (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
Bond[s] or interest in such Bond[s] specified herein, in the principal amount of
$____________ in such Bond[s] or interests (the "EXCHANGE"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL BOND FOR UNRESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL BOND
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL BOND TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL BOND. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted 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 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 state of the United States.
(b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL BOND TO UNRESTRICTED DEFINITIVE BOND. In connection with the
Exchange of the
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Owner's beneficial interest in a Restricted Global Bond for an Unrestricted
Definitive Bond, the Owner hereby certifies (i) the 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 Restricted 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 Definitive Bond is
being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
(c) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL Bond. In connection with the Owner's
Exchange of a Restricted 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 Restricted 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 state of the United States.
(d) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND TO
UNRESTRICTED DEFINITIVE BOND. In connection with the Owner's Exchange of a
Restricted 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
Restricted 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 state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL BONDS FOR RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL BONDS
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL BOND TO RESTRICTED DEFINITIVE BOND. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Bond for a
Restricted Definitive Bond with an equal principal amount, the Owner hereby
certifies that the Restricted 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 Restricted
Definitive Bond issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Bond and in the Indenture and the Securities Act.
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(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL BOND. In connection with the Exchange of
the Owner's Restricted Definitive Bond for a beneficial interest in the
[CHECK ONE] 144A Global Bond, Regulation S Global Bond with an equal
principal amount, 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 Restricted Global Bonds and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any 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
Restricted 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 Transferor]
By:
---------------------------------
Name:
Title:
Dated:
-------------------
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EXHIBIT E
[FACE OF REGULATION S TEMPORARY GLOBAL BOND]
ICC Identification No. 6204
No. R_____________ $__________
THE PEOPLES GAS LIGHT AND COKE COMPANY
FIRST AND REFUNDING MORTGAGE 4% BOND,
SERIES MM-2
DUE March 1, 2010
THE PEOPLES GAS LIGHT AND COKE COMPANY, an Illinois corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to. . . . . .
.. . . . . . . . . . . . . . . . . . . . . ., or registered assigns on March 1,
2010, unless this Bond shall have been called for redemption and payment of the
redemption price shall have been duly made or provided for in accordance with
the hereinafter described Mortgage, the principal sum of . . . . . . . . . . . .
Dollars ($__________), and to pay interest on the balance of said principal sum
from time to time remaining unpaid from the March 1 or September 1 to which
interest has been paid next preceding the date of authentication of this Bond,
unless this Bond is authenticated on a March 1 or September 1 to which interest
has been paid, in which event this Bond shall bear interest from such March 1 or
September 1, or unless no interest has been paid on this Bond, in which event
this Bond shall bear interest from the date hereof, at the rate of four percent
(4%) per annum (calculated on the basis of a year of 360 days consisting of
twelve 30-day months), payable at or before 9:00 a.m., Chicago time, on March 1
or September 1 of each year, commencing September 1, 2003 until payment in full
of such principal sum. Interest shall also accrue on any overdue principal,
premium, if any, and (to the extent that such interest shall be legally
enforceable) on any overdue installment of interest until paid at the same rate
per annum. The interest so payable on any interest payment date will, subject to
certain exceptions provided in the Mortgage, be paid to the person who is the
registered owner of this Bond at the close of business on the applicable record
date next preceding such interest payment date (February 15 or August 15, as the
case may be). Principal of, premium, if any, and interest on this Bond shall be
payable in lawful money of the United States of America at the principal
corporate office or agency of the Company in Chicago, Illinois.
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[BACK OF REGULATION S TEMPORARY GLOBAL BOND]
4% FIRST AND REFUNDING MORTGAGE BONDS, SERIES MM-1 DUE MARCH 1, 2010 THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE BONDS (AS DEFINED IN THE
SUPPLEMENTAL SUPPLEMENTAL INDENTURE GOVERNING THIS BOND), ARE AS SPECIFIED IN
THE SUPPLEMENTAL INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL BOND SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL BOND IS HELD BY THE DEPOSITARY (AS DEFINED IN THE 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 11 OF ARTICLE I OF THE SUPPLEMENTAL INDENTURE,
(2) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 11(a) OF ARTICLE I OF THE SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL BOND
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 11 OF
ARTICLE I OF THE SUPPLEMENTAL INDENTURE AND (4) THIS GLOBAL BOND MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEFINITIVE BONDS (AS
DEFINED IN THE SUPPLEMENTAL INDENTURE GOVERNING THIS BOND), THIS BOND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 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.
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE
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TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (5) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND BASED ON AN OPINION OF COUNSEL IF THE COMPANY OR THE TRUSTEE
SO REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(B) THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
Capitalized terms used herein have the meanings assigned to them in the
Supplemental Indenture referred to below unless otherwise indicated.
This Bond is one of the First and Refunding Mortgage Bonds of the Company,
all issued and to be issued in series, from time to time, under and in
accordance with and, irrespective of the time of issue or of the series in which
issued or the designation thereof, equally secured by an Supplemental Indenture,
dated the second day of January, 1926, executed by Chicago By-Product Coke
Company, a Delaware corporation, to Illinois Merchants Trust Company, as
trustee, and recorded on January 19, 1926, as Document No. 9154395 in Book 22219
of Records, at page 283, in the Recorder's Office of Xxxx County, Illinois,
which Supplemental Indenture was assumed by the Company as a successor
corporation, as defined therein, by an Supplemental Indenture, dated the first
day of March, 1928, executed by the Company to said trustee, and recorded on
April 7, 1928, as Document No. 9980547 in Book 25701 of Records, at page 599, in
the Recorder's Office of Xxxx County, Illinois, and has heretofore been, and
from time to time hereafter may be, amended and supplemented by Supplemental
Indentures supplemental thereto, including the Supplemental Indenture dated as
of February 15, 2003 relating to the hereinafter described Series MM-2 Bonds
(the "Supplemental Indenture"). Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings ascribed thereto in the Supplemental
Indenture. The word "Mortgage", as used in this Bond, shall mean said
Supplemental Indenture, as amended and supplemented from time to time by
Supplemental Indentures supplemental thereto, including the Supplemental
Indenture. The word "Company", as used in this Bond, shall be construed to
include any successor corporation, as defined in the Mortgage. The word
"Trustee", as used in this Bond, shall be construed to mean and include U.S.
Bank National Association (successor to Illinois Merchants Trust Company), as
trustee under the Mortgage, and
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any successor trustee thereunder. Reference is hereby made to the Mortgage and
all Supplemental Indentures supplemental thereto for a description of the
property mortgaged and pledged (except that certain parcels described in the
Mortgage and in said Supplemental Indentures have been released from the lien of
the Mortgage pursuant to the terms thereof), the nature and extent of the
security and the terms and conditions governing the issuance and security of the
bonds issued or to be issued under the Mortgage. As provided in the Mortgage,
the bonds may be for various principal sums, are issuable in series, may bear
interest at different rates and may otherwise vary as provided therein. This
Bond is one of the series of such First and Refunding Mortgage Bonds designated
as "The Peoples Gas Light and Coke Company First and Refunding Mortgage 4%
Bonds, Series MM-2", hereinafter called the "Series MM-2 Bonds".
The Series MM-2 Bonds shall be deliverable in the form of registered Bonds
without coupons in the denominations of $1,000 and any integral multiple
thereof.
As more fully described in the Supplemental Indenture, the Company reserves
the right, without any consent or other action by holders of the Series MM-2
Bonds or the bonds of any subsequent series, to amend the Mortgage to provide
that the Mortgage, the rights and obligations of the Company and the rights of
the bondholders may be modified with the consent of the holders of not less than
60% in aggregate principal amount of the bonds adversely affected; provided,
however, that no modification shall (1) extend the time, or reduce the amount,
of any payment on any bond, without the consent of the holder of each bond so
affected, (2) permit the creation of any lien, not otherwise permitted, prior to
or on a parity with the lien of the Mortgage, without the consent of the holders
of all bonds then outstanding, or (3) reduce the above percentage of the
principal amount of bonds the holders of which are required to approve any such
modification without the consent of the holders of all bonds then outstanding.
The Series MM-2 Bonds are subject to optional redemption by the Company, in
whole but not in part, at any time, at a redemption price of 100% of the
principal amount thereof, plus accrued interest, if any, to the redemption date,
upon the occurrence of certain events described in the Supplemental Indenture
(relating to unreasonable burdens or excessive liabilities imposed upon the
Company; changes in the economic availability of raw materials, operating
supplies, fuel or other energy sources or supplies or technological or other
changes rendering its property uneconomic; court order or decree preventing
operations at its property or rendering the continuation of its operations
economically unfeasible).
All of the outstanding Series MM-2 Bonds may be redeemed at any time by the
Company, by the payment of the principal amount thereof and accrued interest
thereon to the date of redemption, without the payment of any premium, in the
event of the acquisition by any federal, state or municipal authority of any
substantial portion (which shall be not less than one-third as determined by
book values) of the income-producing properties of the Company which are subject
to the lien of the Mortgage.
All of the outstanding bonds under the Mortgage shall be redeemed by the
Company by the payment of the respective applicable redemption price or prices
and accrued interest thereon to the date of redemption, without the payment of
any premium, in the event of the acquisition
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by any federal, state or municipal authority of all or substantially all of the
income-producing properties of the Company which are subject to the lien of the
Mortgage.
Notice of any redemption of the Series MM-2 Bonds shall be given by mailing
by first-class mail, postage prepaid, at least thirty (30) days and not more
than sixty (60) days prior to the redemption date, to the holders of all such
bonds to be redeemed at their last addresses that shall appear upon the registry
book, all as more fully provided in the Mortgage. Notice of redemption having
been duly given, the bonds called for redemption shall become due and payable
upon the redemption date and, if the redemption price shall have been deposited
with the Trustee, interest thereon shall cease to accrue on and after the
redemption date, and whenever the redemption price thereof shall have been
deposited with the Trustee and notice of redemption shall have been duly given
or provision therefore made, such bonds shall no longer be entitled to any lien
or benefit of the Mortgage.
In case of certain events of default specified in the Mortgage, the
principal of all bonds issued and outstanding thereunder may be declared or may
become due and payable in the manner and with the effect provided in the
Mortgage.
No recourse shall be had for the payment of the principal of or interest on
this Bond, or for any claim based hereon, or otherwise in respect hereof or of
the Mortgage, to or against any incorporator, stockholder, director or officer,
past, present or future, of the Company, either directly or through the Company,
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,
stockholders, directors and officers being released by the holder hereof by the
acceptance of this Bond, and being likewise waived and released by the terms of
the Mortgage.
This Bond is transferable by the registered holder hereof in person or by a
duly authorized attorney at the office or agency of the Company in the City of
Chicago, State of Illinois, upon surrender and cancellation of this Bond, and
thereupon a new registered bond or bonds, without coupons, of the same series
and for the same aggregate principal amount will be issued to the transferee in
exchange herefor. In the manner provided in the Mortgage, registered Bonds
without coupons of this series may, at the option of the registered owner and
upon surrender at said office or agency of the Company, be exchanged for
registered Bonds without coupons of this series of the same aggregate principal
amount of other authorized denominations.
The Company and 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 payment and for all other purposes and neither the
Company nor the Trustee nor any paying agent shall be affected by any notice to
the contrary.
This Bond shall not be entitled to any security or benefit under the
Mortgage, and shall not become valid or obligatory for any purpose, until this
Bond shall have been authenticated by the execution of the certificate, hereon
endorsed, by the Trustee or its successor in trust under the Mortgage.
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