TWENTY-SEVENTH SUPPLEMENTAL INDENTURE

NORTHWESTERN CORPORATION

TO

THE BANK OF NEW YORK MELLON

(formerly The Bank of New York)

AND

MING RYAN

As Trustees under Mortgage and

Deed of Trust, dated as of

October 1, 1945, with NorthWestern Corporation

TWENTY-SEVENTH SUPPLEMENTAL INDENTURE

Providing, among other things, for First Mortgage Bonds, 6.34% Series due 2019

 

Dated as of March 1, 2009

 

TWENTY-SEVENTH SUPPLEMENTAL INDENTURE

THIS TWENTY-SEVENTH SUPPLEMENTAL INDENTURE, dated as of March 1, 2009, between NORTHWESTERN CORPORATION, a corporation duly incorporated and existing under the laws of the State of Delaware (hereinafter called the “ Company ”), having its principal office at 3010 West 69th Street, Sioux Falls, South Dakota, 57108, and THE BANK OF NEW YORK MELLON (formerly The Bank of New York) (hereinafter called the “ Corporate Trustee ”), a corporation of the State of New York, whose principal corporate trust office is located at 101 Barclay Street, New York, New York, 10286 (successor to MORGAN GUARANTY TRUST COMPANY OF NEW YORK (formerly Guaranty Trust Company of New York)), and MING RYAN, whose post office address is c/o The Bank of New York Mellon, 101 Barclay Street, New York, New York, 10286 (successor to Arthur E. Burke, Karl R. Henrich, H.H. Gould, R. Amundsen, P.J. Crowley, W.T. Cunningham, Douglas J. MacInnes and MaryBeth Lewicki) (said Ming Ryan being hereinafter sometimes called the “ Co-Trustee ”, and the Corporate Trustee and the Co-Trustee being hereinafter together sometimes called the “ Trustees ”), as Trustees under the Mortgage and Deed of Trust, dated as of October 1, 1945 (hereinafter called the “ Mortgage ” and, together with any indentures supplemental thereto, the “ Indenture ”), which Mortgage was executed and delivered by The Montana Power Company, a corporation of the State of New Jersey (hereinafter called the “ Company-New Jersey ”), as indirect predecessor under the Mortgage to the Company (the Company being successor under the Mortgage to NorthWestern Energy, L.L.C. (hereinafter called “ NorthWestern Energy ”), formerly known as The Montana Power, L.L.C., a limited liability company of the State of Montana, and NorthWestern Energy being the successor under the Mortgage to The Montana Power Company, a corporation of the State of Montana (hereinafter called the “ Company-Montana ”)), to Guaranty Trust Company of New York and Arthur E. Burke, as Trustees, to secure the payment of bonds issued or to be issued under and in accordance with the provisions of the Mortgage, reference to which Mortgage is hereby made, this instrument (hereinafter called the “ Twenty-seventh Supplemental Indenture ”) being supplemental thereto;

WHEREAS, by the Mortgage, the Company-New Jersey covenanted that it would execute and deliver such supplemental indenture or indentures and such further instruments and do such further acts as might be necessary or proper to carry out more effectually the purposes of the Indenture and to make subject to the lien of the Indenture any property thereafter acquired, made or constructed and intended to be subject to the lien thereof; and

WHEREAS, the Company-New Jersey executed and delivered to the Trustees its First Supplemental Indenture, dated as of May 1, 1954 (hereinafter called the “ First Supplemental Indenture ”), and its Second Supplemental Indenture, dated as of April 1, 1959 (hereinafter called the “ Second Supplemental Indenture ”); and

WHEREAS, the Company-New Jersey was merged into the Company-Montana on November 30, 1961, and to evidence the succession of the Company-Montana to the Company-New Jersey for purposes of the bonds and the Indenture and the assumption by the Company-Montana of the covenants and conditions of the Company-New Jersey in the bonds and in the Indenture contained and to enable the Company-Montana to have and exercise the powers and rights of the Company-New Jersey under the Indenture in accordance with the terms thereof, the Company-Montana executed and delivered to the Trustees its Third Supplemental Indenture, dated as of November 30, 1961 (hereinafter called the “ Third Supplemental Indenture ”); and

WHEREAS, the Company-Montana executed and delivered to the Trustees its Fourth Supplemental Indenture, dated as of April 1, 1970 (hereinafter called the “ Fourth Supplemental Indenture ”); its Fifth Supplemental Indenture, dated as of April 1, 1971 (hereinafter called the “ Fifth Supplemental Indenture ”); its Sixth Supplemental Indenture, dated as of March 1, 1974 (hereinafter called the “ Sixth Supplemental Indenture ”); its Seventh Supplemental Indenture, dated as of December 1, 1974 (hereinafter called the “ Seventh Supplemental Indenture ”); its Eighth Supplemental Indenture, dated as of July 1, 1975 (hereinafter called the “ Eighth Supplemental Indenture ”); its Ninth Supplemental Indenture, dated as of December 1, 1975 (hereinafter called the “ Ninth Supplemental Indenture ”); its Tenth Supplemental Indenture, dated as of January 1, 1979 (hereinafter called the “ Tenth Supplemental Indenture ”); its Eleventh Supplemental Indenture, dated as of October 1, 1983 (hereinafter called the “ Eleventh Supplemental Indenture ”); its Twelfth Supplemental Indenture, dated as of January 1, 1984 (hereinafter called the “ Twelfth Supplemental Indenture ”); its Thirteenth Supplemental Indenture, dated as of December 1, 1991 (hereinafter called the “ Thirteenth Supplemental Indenture ”); its Fourteenth Supplemental Indenture, dated as of January 1, 1993 (hereinafter called the “ Fourteenth Supplemental Indenture ”); its Fifteenth Supplemental Indenture, dated as of March 1, 1993 (hereinafter called the “ Fifteenth Supplemental Indenture ”); its Sixteenth Supplemental Indenture, dated as of May 1, 1993 (hereinafter called the “ Sixteenth Supplemental Indenture ”); its Seventeenth Supplemental Indenture, dated as of December 1, 1993 (hereinafter called the “ Seventeenth Supplemental Indenture ”); its Eighteenth Supplemental Indenture, dated as of August 5, 1994 (hereinafter called the “ Eighteenth Supplemental Indenture ”); its Nineteenth Supplemental Indenture, dated as of December 16, 1999 (hereinafter called the “ Nineteenth Supplemental Indenture ”); and its Twentieth Supplemental Indenture, dated as of November 1, 2001 (hereinafter called the “ Twentieth Supplemental Indenture ”); and

WHEREAS, the Company-Montana was merged into NorthWestern Energy (under its then name, The Montana Power, L.L.C.) on February 13, 2002; and to evidence the succession of NorthWestern Energy (under its then name, The Montana Power, L.L.C.) to the Company-Montana for purposes of the bonds and the Indenture and the assumption by NorthWestern Energy (under its then name, The Montana Power, L.L.C.) of the covenants and conditions of the Company-Montana in the bonds and in the Indenture contained and to enable NorthWestern Energy (under its then name, The Montana Power, L.L.C.) to have and exercise the powers and rights of the Company-Montana under the Indenture in accordance with the terms thereof, NorthWestern Energy (under its then name, The Montana Power, L.L.C.) executed and delivered to the Trustees its Twenty-first Supplemental Indenture, dated as of February 13, 2002 (hereinafter called the “ Twenty-first Supplemental Indenture ”); and

WHEREAS, NorthWestern Energy changed its name from The Montana Power, L.L.C. to NorthWestern Energy, L.L.C. on March 19, 2002; and

WHEREAS, NorthWestern Energy transferred, subject to the Lien of the Indenture, substantially all of the Mortgaged and Pledged Property as an entirety to the Company on November 20, 2002 (the “ Transfer Date ”), and to evidence the succession of the Company to NorthWestern Energy for purposes of the bonds and the Indenture and the assumption by the

 

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Company of the covenants and conditions of NorthWestern Energy in the bonds and in the Indenture contained and to enable the Company to have and exercise the powers and rights of NorthWestern Energy under the Indenture in accordance with the terms thereof, the Company executed and delivered to the Trustees its Twenty-second Supplemental Indenture, dated as of November 15, 2002 (hereinafter called the “ Twenty-second Supplemental Indenture ”); and

WHEREAS, the Company executed and delivered to the Trustees its Twenty-third Supplemental Indenture, dated as of February 1, 2003 (hereinafter called the “ Twenty-third Supplemental Indenture ”); its Twenty-fourth Supplemental Indenture, dated as of November 1, 2004 (hereinafter called the “ Twenty-fourth Supplemental Indenture ”); its Twenty-fifth Supplemental Indenture, dated as of April 1, 2006 (hereinafter called the “Twenty-fifth Supplemental Indenture” ) and its Twenty-sixth Supplemental Indenture, dated as of September 1, 2006 (hereinafter called the “ Twenty-sixth Supplemental Indenture ”); and

WHEREAS, the Mortgage and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth Supplemental Indentures were recorded in the official records of various counties and states as required by the Indenture; and

WHEREAS, the Company expects to record this Twenty-seventh Supplemental Indenture in the official records of various counties and states as required by the Indenture;

WHEREAS, an instrument dated March 15, 1955 was executed by the Company-New Jersey appointing Karl R. Henrich as Co-Trustee in succession to said Arthur E. Burke, resigned, under the Mortgage and by Karl R. Henrich accepting the appointment as Co-Trustee under the Mortgage in succession to said Arthur E. Burke, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and

WHEREAS, an instrument dated June 29, 1962 was executed by the Company-Montana appointing H.H. Gould as Co-Trustee in succession to said Karl R. Henrich, resigned, under the Mortgage and by H.H. Gould accepting the appointment as Co-Trustee under the Mortgage in succession to said Karl R. Henrich, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and

WHEREAS, an instrument dated June 22, 1973 was executed by the Company-Montana appointing R. Amundsen as Co-Trustee in succession to said H.H. Gould, resigned, under the Mortgage and by R. Amundsen accepting the appointment as Co-Trustee under the Mortgage in succession to said H.H. Gould, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and

WHEREAS, an instrument dated July 1, 1986 was executed by the Company-Montana appointing P.J. Crowley as Co-Trustee in succession to said R. Amundsen, resigned, under the Mortgage and by P.J Crowley accepting the appointment as Co-Trustee under the Mortgage in succession to said R. Amundsen, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and

 

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WHEREAS, by the Eighteenth Supplemental Indenture, the Company-Montana appointed (i) W.T. Cunningham as Co-Trustee in succession to said P.J. Crowley, resigned, under the Mortgage and W.T. Cunningham accepted the appointment as Co-Trustee under the Mortgage in succession to said P.J. Crowley, and (ii) The Bank of New York Mellon as Corporate Trustee in succession to Morgan Guaranty Trust Company of New York, resigned, under the Mortgage and The Bank of New York Mellon accepted the appointment as Corporate Trustee under the Mortgage in succession to said Morgan Guaranty Trust Company of New York, which supplemental indenture was recorded in various counties in the states of Montana, Idaho and Wyoming; and

WHEREAS, an instrument dated March 29, 1999 was executed by the Company-Montana appointing Douglas J. MacInnes as Co-Trustee in succession to said W.T. Cunningham, resigned, under the Mortgage and by Douglas J. MacInnes accepting the appointment as Co-Trustee under the Mortgage in succession to said W.T. Cunningham, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and

WHEREAS, by the Twenty-third Supplemental Indenture, the Company appointed MaryBeth Lewicki as Co-Trustee in succession to said Douglas J. MacInnes, removed, under the Mortgage and MaryBeth Lewicki accepted the appointment as Co-Trustee under the Mortgage in succession to said Douglas J. MacInnes; and

WHEREAS, by the Twenty-fifth Supplemental Indenture, the Company appointed Ming Ryan as Co-Trustee in succession to said MaryBeth Lewicki, removed, under the Mortgage and Ming Ryan accepted the appointment as Co-Trustee under the Mortgage in succession to said Mary Beth Lewicki; and

WHEREAS, the Company-New Jersey, the Company-Montana or the Company has heretofore issued, in accordance with the provisions of the Mortgage, the following series of First Mortgage Bonds:

 

 

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which bonds are also hereinafter sometimes called “ Bonds of the First through Twenty-eighth Series ”, respectively; and

WHEREAS, Section 8 of the Mortgage provides that the form of each series of bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon bonds of such series shall be established by Resolution of the Board of Directors of the Company and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Indenture as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Indenture; and

WHEREAS, Section 120 of the Mortgage provides, among other things, that any power, privilege or right expressly or impliedly reserved to or in any way conferred upon the Company by any provision of the Indenture, whether such power, privilege or right is in any way restricted or is unrestricted, may be in whole or in part waived or surrendered or subjected to any restriction if at the time unrestricted or to additional restriction if already restricted, and the Company may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued thereunder, or the Company may cure any ambiguity contained therein or in any supplemental indenture or may (in lieu of establishment by Resolution as provided in Section 8 of the Mortgage) establish the terms and provisions of any series of bonds other than the First Series, by an instrument in writing executed and acknowledged by the Company in such manner as would be necessary to entitle a conveyance of real estate to record in all of the states in which any property at the time subject to the lien of the Indenture shall be situated; and

WHEREAS, the Company now desires to create a new series of bonds (the “Bonds of the Twenty-ninth Series”, which term shall include the Private Bonds and the Exchange Bonds (each as defined herein), unless the context otherwise requires) and (pursuant to the provisions of

 

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Section 120 of the Mortgage) to add to its covenants and agreements contained in the Mortgage certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Indenture; and

WHEREAS, the Company and the initial purchasers of the Bonds of the Twenty-ninth Series are entering into a Registration Rights Agreement dated March 26, 2009 (the “Registration Rights Agreement”) which requires the Company to use commercially reasonable efforts to make a Registered Exchange Offer which would enable holders of the Bonds of the Twenty-ninth Series to exchange such bonds for Securities not subject to certain restrictions under the Securities Act or to cause a Shelf Registration Statement to become effective with respect to the Bonds of the Twenty-ninth Series (in each case as defined in such Registration Rights Agreement); and

WHEREAS, the execution and delivery by the Company of this Twenty-seventh Supplemental Indenture, and the terms of the Bonds of the Twenty-ninth Series, hereinafter referred to, have been duly authorized by the Board of Directors of the Company by appropriate Resolutions of said Board of Directors.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

That the Company, in consideration of the premises and of $1.00 to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustees and in order further to secure the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued under the Indenture, according to their tenor and effect and the performance of all the provisions of the Indenture (including any modification made as in the Mortgage provided) and of said bonds, and to confirm the lien of the Mortgage, as heretofore supplemented, on certain after-acquired property, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage, as heretofore supplemented) unto Ming Ryan, Co-Trustee, and (to the extent of its legal capacity to hold the same for the purposes hereof) to The Bank of New York Mellon, the Corporate Trustee, as Trustees under the Indenture, and to their successor or successors in said trust, and to said Trustees and their successors and assigns forever, all property, real, personal and mixed, of the kind or nature specifically mentioned in the Mortgage, as heretofore supplemented, or of any other kind or nature (whether or not located in the State of Montana), acquired by the Company after the date of the execution and delivery of the Mortgage, as heretofore supplemented (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted), now owned or, subject to the provisions of subsection (I) of Section 87 of the Mortgage, as heretofore supplemented, hereafter acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing, or of any general description contained in the Indenture) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites, aqueducts and all other rights or means for appropriating, conveying, storing and supplying water; all rights of way and roads; all plants for the generation of electricity by steam, water and/or other power; all powerhouses, gas plants,

 

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street lighting systems, standards and other equipment incidental thereto, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment, offices, buildings and other structures and the equipment thereof, all machinery, engines, boilers, dynamos, electric, gas and other machines, regulators, meters, transformers, generators, motors, electrical, gas and mechanical appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, pole and transmission lines, wires, cables, tools, implements, apparatus, furniture and chattels; all franchises, consents or permits, all lines for the transmission and distribution of electric current, gas, steam heat or water for any purpose including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use in connection therewith; all real estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights of way and other rights in or relating to real estate or the occupancy of the same and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, title and interest of the Company in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinbefore or in the Mortgage, as heretofore supplemented, described.

TOGETHER with all and singular the tenements, hereditaments, prescriptions, servitudes and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.

IT IS HEREBY AGREED by the Company that, subject to the provisions of subsection (I) of Section 87 of the Mortgage, as heretofore supplemented, all the property, rights and franchises acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) after the date hereof, except any herein or in the Mortgage, as heretofore supplemented, expressly excepted, shall be and are as fully granted and conveyed hereby and as fully embraced within the lien hereof and the lien of the Mortgage, as heretofore supplemented, as if such property, rights and franchises were now owned by the Company and were specifically described herein and conveyed hereby.

PROVIDED that the following are not and are not intended to be now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder and are hereby expressly excepted from the lien and operation of the Mortgage, as supplemented, viz:  (1) cash, shares of stock, bonds, notes and other obligations and other securities not specifically pledged, paid, deposited, delivered or held under the Mortgage, as supplemented, or covenanted so to be; (2) merchandise, equipment, apparatus, materials or supplies held for the purpose of sale or other disposition in the usual course of business; fuel, oil and similar materials and supplies consumable in the operation of any of the properties of the Company; all aircraft, tractors, rolling stock, trolley coaches, buses, motor coaches, automobiles, motor trucks, and other vehicles and materials and supplies held for the purpose of repairing or replacing (in whole or part) any of the same; (3) bills, notes and accounts receivable, judgments, demands and choses in action, and all contracts, leases and

 

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operating agreements not specifically pledged under the Mortgage, as supplemented, or covenanted so to be; the Company’s contractual rights or other interest in or with respect to tires not owned by the Company; (4) the last day of the term of any lease or leasehold which may be or become subject to the lien of the Mortgage, as supplemented; (5) electric energy, gas, steam, water, ice, and other materials or products generated, manufactured, produced, purchased or acquired by the Company for sale, distribution or use in the ordinary course of its business; all timber, minerals, mineral rights and royalties and all Gas and Oil Production Property, as defined in Section 4 of the Mortgage, as supplemented; (6) the Company’s franchise to be a corporation; and (7) any property heretofore released pursuant to any provisions of the Indenture and not heretofore disposed of by the Company-New Jersey, the Company-Montana, NorthWestern Energy or the Company; provided, however, that the property and rights expressly excepted from the lien and operation of the Mortgage, as supplemented, in the above subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event and as of the date that either or both of the Trustees or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Mortgage by reason of the occurrence of a Default as defined in Section 65 thereof.

TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Co-Trustee and (to the extent of its legal capacity to hold the same for the purposes hereto) unto the Corporate Trustee, as Trustees, and their successors and assigns forever.

IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as are set forth in the Mortgage, as supplemented, this Twenty-seventh Supplemental Indenture being supplemental thereto.

AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions, provisos, covenants and provisions contained inthe Mortgage, as supplemented, shall affect and apply to the property hereinbefore described and conveyed and to the estate, rights, obligations and duties of the Company and the Trustees and the beneficiaries of the trust with respect to said property, and to the Trustees and their successors as Trustees of said property in the same manner and with the same effect as if the said property had been owned by the Company-New Jersey at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to the Trustees, by the Mortgage as a part of the property therein stated to be conveyed.

SUBJECT NEVERTHELESS, to the limitation permitted by subsection (I) of Section 87 of the Mortgage, as supplemented, namely, that notwithstanding the foregoing, the Mortgage, as supplemented, shall not become or be or be required to become or be a lien upon any of the properties or franchises owned by the Company on the Transfer Date or thereafter acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) except (a) those acquired by it from NorthWestern Energy, and improvements, extensions and additions thereto and renewals and replacements thereof, (b) the property made and used by the Company as the basis under any of the provisions of the Indenture for the authentication and delivery of additional bonds or the withdrawal of cash or the release of

 

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property or a credit under Section 39 or Section 40 of the Indenture, and (c) such franchises, repairs and additional property as may be acquired, made or constructed by the Company (1) to maintain, renew and preserve the franchises covered by the Indenture, or (2) to maintain the property mortgaged and intended to be mortgaged under the Indenture as an operating system or systems in good repair, working order and condition, or (3) in rebuilding or renewal of property, subject to the Lien under the Indenture, damaged or destroyed, or (4) in replacement of or substitution for machinery, apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements and furniture, subject to the Lien thereunder, which shall have become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable, undesirable or unnecessary for use in the operation of the property mortgaged and intended to be mortgaged thereunder.

The Company further covenants and agrees to and with the Trustees and their successors in said trust under the Indenture, as follows:

ARTICLE I

Twenty-ninth Series of Bonds

Section 1.01.

General Terms of Bonds to be Issued .

(a)         There is hereby created a series of bonds designated: “6.34% Series due 2019” (herein sometimes referred to as the Twenty-ninth Series; and the bonds of such Twenty-ninth Series are hereinafter referred to in this Article I as the “Bonds”), each of which shall bear the descriptive title “First Mortgage Bond.” Bonds of the Twenty-ninth Series shall mature on April 1, 2019 and shall be issued as fully registered bonds in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof; they shall bear interest at the rate of 6.34% per annum payable in arrears, plus any Additional Interest as shall be payable pursuant to Section 6 of the Registration Rights Agreement, the first interest payment to be made on October 1, 2009 and shall be for the period from the date of first authentication of the Bonds to September 30, 2009, with subsequent interest payments payable semiannually on April 1 and October 1 of each year (each such payment date, an “Interest Payment Date”); the principal of and interest on each Bond to be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. For purposes of this Twenty-seventh Supplemental Indenture, the term “interest” shall be deemed to include the Additional Interest payable pursuant to Section 6 of the Registration Rights Agreement. The Bonds shall be dated as in Section 10 of the Mortgage provided.

The Bonds shall be issued substantially in the form of Exhibit A or Exhibit B hereto, as applicable, and as further provided in Article II of this Twenty-seventh Supplemental Indenture, and shall be deposited on behalf of the purchasers of the Bonds represented thereby with the Corporate Trustee as custodian for The Depository Trust Company (DTC) or such other depositary as may be subsequently designated (the “Depositary”), shall be registered in the name of the Depositary or a nominee of the Depositary and the aggregate principal amount of Bonds so issued may from time to time be increased or decreased by adjustments made on the records of the Corporate Trustee and the Depository or its nominee.

 

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At the option of the registered owner, any Bonds, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.

The Bonds shall be transferable upon the surrender thereof for cancellation, together with a written instrument of transfer in form approved by the Registrar, duly executed by the registered owner or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York.

Upon any exchange or transfer of Bonds, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of Bonds.

(b)         Upon the delivery of this Twenty-seventh Supplemental Indenture, Bonds of the Twenty-ninth Series in the aggregate principal amount of $250,000,000 are to be issued and delivered, pursuant to Articles V and/or VI of the Mortgage, forthwith and will be Outstanding in addition to $161,000,000 aggregate principal amount of Bonds of the Twenty-sixth Series Outstanding, $170,205,000 aggregate principal amount of Bonds of the Twenty-seventh Series Outstanding and $150,000,000 aggregate principal amount of Bonds of the Twenty-eighth Series Outstanding at the date of delivery of this Twenty-seventh Supplemental Indenture.

Section 1.02.

Redemption .

(a)         The Bonds will not be subject to any mandatory redemption, sinking fund or other obligation of the Company to amortize, redeem or retire the Bonds prior to maturity and, in any case, the Bonds shall not be redeemable prior to maturity at the option of any holder of Bonds. Bonds of the Twenty-ninth Series shall be redeemable, however, at the option of the Company subject to the requirements of the Indenture in whole or in part at any time and from time to time, prior to maturity, upon notice to the holders of such Bonds by first class mail, mailed not less than 30 days but not more than 60 days prior to the date on which such Bonds are fixed to be redeemed (such date fixed for redemption, the “Redemption Date”), in cash at a redemption price (the “Redemption Price”) equal to (i) the greater of: (A) one hundred per centum (100%) of the principal amount of Bonds to be redeemed then Outstanding, and (B) the sum of the present values of the remaining scheduled payments of principal and interest on such Bonds to be redeemed (not including any portion of such payments of interest accrued as of the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as hereinafter defined), plus 50 basis points, plus (ii) accrued and unpaid interest to the Redemption Date, as calculated by an Independent Investment Banker (as hereinafter defined); provided, however, that such Redemption Price and other terms shall be in accordance with a Resolution of the Company’s Board of Directors which Resolution shall be filed with the Corporate Trustee.

(b)         In the event of any redemption of the Bonds, neither the Company nor the Corporate Trustee shall be required to (i) register the transfer of or exchange any Bonds during a period beginning at the opening of business 15 days before any selection for redemption of such

 

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Bonds and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all holders of Bonds to be redeemed or (ii) register the transfer of or exchange any Bonds so selected for redemption, in whole or in part, except the unredeemed portion of any Bonds being redeemed in part. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the Bonds of this series or portions thereof called for redemption.

(c)         If the Company elects to redeem the Bonds in part, the Corporate Trustee shall select a fair and appropriate manner in which to determine which of the Bonds Outstanding are to be redeemed; provided that such manner shall be pursuant to the requirements of the Indenture.

(d)         For purposes of this Section 1.02:

“Adjusted Treasury Rate” means, with respect to any Redemption Date:

•

the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities” for the maturity corresponding to the Comparable Treasury Issue (as hereinafter defined) (if no maturity is within three months before or after the Remaining Life (as hereinafter defined), yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or

 

•

if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price (as hereinafter defined) for such Redemption Date.

The Adjusted Treasury Rate will be calculated on the third Business Day (as hereinafter defined) preceding the Redemption Date.

“Comparable Treasury Issue” the United States Treasury security selected by an Independent Investment Banker (as hereinafter defined) as having a maturity comparable to the remaining term of the Bonds to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Bonds (the “Remaining Life”).

 

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“Comparable Treasury Price” means (1) the average of five Reference Treasury Dealer Quotations (as hereinafter defined) for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker (as hereinafter defined) obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

“Reference Treasury Dealer” means:

•

Banc of America Securities LLC, J.P. Morgan Securities Inc. and their successors; provided that, if Banc of America Securities LLC or J.P. Morgan Securities Inc. ceases to be a primary U.S. Government securities dealer in New York City (Primary Treasury Dealer), another Primary Treasury Dealer appointed by the Company; and

 

•

up to three other Primary Treasury Dealers selected by the Company.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

The Corporate Trustee shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in acting upon the calculation by the Independent Investment Banker of any Redemption Price of the Bonds.

Section 1.03.

Interest .

The Bonds shall bear interest for each Interest Period (as hereinafter defined) at a rate per annum of 6.34% plus Additional Interest payable pursuant to Section 6 of the Registration Rights Agreement.

The period commencing on an Interest Payment Date and ending on the day preceding the next succeeding Interest Payment Date shall be an “Interest Period” provided that the first Interest Period shall begin on the date of the first authentication of the Bonds and extend through September 30, 2009, the day preceding the first Interest Payment Date.

Interest payments for the Bonds will be computed and paid on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or Redemption Date falls on a day that is not a Business Day, such Interest Payment Date or Redemption Date, as the case may be, will be the immediately succeeding Business Day with the same force and effect as if made on the original Interest Payment Date or Redemption Date, as the case may be, and no interest shall accrue for the period from and after such original Interest Payment Date or Redemption Date, as the case may be. All dollar amounts resulting from such calculation will be rounded, if necessary, to the nearest cent with one-half cent rounded upward.

 

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Interest on any Bond which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Bond (or one or more Predecessor Bonds) is registered at the close of business on the Record Date for such interest; provided, however, that interest payable at maturity (whether the stated maturity or maturity resulting from declaration of acceleration, call for redemption or otherwise) shall be payable to the Person to whom the principal of such Bond shall be payable.

Section 1.04 Registration Rights and Exchange . The Company has entered into a Registration Rights Agreement dated March 26, 2009 (the “Registration Rights Agreement”) with the initial purchasers of the Bonds of the Twenty-ninth Series pursuant to which, among other things, the Bonds that are issued without registration (the “Private Bonds”) under the Securities Act of 1933, as amended (the “Securities Act’), may be exchanged for Bonds that will be registered under the Securities Act and that will otherwise have substantially the same terms as the Private Bonds (the “Exchange Bonds”) or, failing such exchange, the Company will file a shelf registration for the resale of the Private Bonds. The Private Bonds will be offered and sold in reliance on exemptions from, or in transactions not subject to, the Securities Act, and Private Bonds will be exchanged for Exchange Bonds only pursuant to an effective registration statement under the Securities Act and otherwise in accordance with the Registration Rights Agreement and the Mortgage. Except as provided in the Registration Rights Agreement, nothing in the Mortgage or the Bonds shall be construed to require the Company to register any Bonds under the Securities Act, or to make any transfer of such Bonds in violation of applicable law. The Private Bonds and the Exchange Bonds will constitute a single series of Bonds under the Mortgage.

ARTICLE II

Transfer and Exchange of Bonds; Book Entry

Section 2.01.

Form of Bonds .

(a)         Private Bonds of the Twenty-ninth Series shall be substantially in the form of Exhibit A attached hereto. Exchange Bonds of the Twenty-ninth Series shall be substantially in the form of Exhibit B attached hereto. Each Bond shall represent such aggregate principal amount of the outstanding Bonds as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Bonds 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 represented thereby shall be made by the Corporate Trustee, the Depositary or the Bond Custodian, at the direction of the Corporate Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.03 of this Article.

(b)        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 Bank” and “Customer Handbook” of Clearstream shall be applicable to transfers of

 

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beneficial interests in the Regulation S Global Bonds that are held by members of, or Participants, in DTC through Euroclear or Clearstream.

(c)         The Corporate Trustee has been appointed by the Depositary to act as Bond Custodian with respect to the Global Bonds.

Section 2.02.   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 shall be exchanged by the Company for Certificated Bonds only if:

(a)         the Company delivers to the Corporate Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary for the Global Bonds 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 90 days after the date of such notice from the Depositary or

(b)         the Company, at its option, notifies the Corporate Trustee in writing that it elects to cause issuance of the Bonds of the Twenty-ninth Series in certificated form, subject to the procedures of the Depositary; or

(c)         there has occurred and is continuing a Default with respect to the Bonds of the Twenty-ninth Series.

Upon the occurrence of any of the preceding events in (a), (b) or (c) above, Certificated Bonds shall be issued in such names as the Depositary shall instruct the Corporate Trustee. Subject to the provisions of this Twenty-seventh Supplemental Indenture, Global Bonds also may be exchanged or replaced, in whole or in part, as provided in Sections 12 and 16 of the Indenture. Every Bond of the Twenty-ninth Series authenticated and delivered in exchange for, or in lieu of, a Global Bond or any portion thereof, pursuant to Sections 12 and 16 of the Indenture, shall be authenticated and delivered in the form of, and shall be, a Global Bond. A Global Bond may not be exchanged for another Bond of the Twenty-ninth Series other than as provided in this Section 2.02(c), however, beneficial interests in a Global Bond may be transferred and exchanged as provided in Sections 2.03, 2.04 or 2.07 of this Article.

Section 2.03.    Transfer and Exchange of Beneficial Interests in the Global Bonds . The transfer and exchange of beneficial interests in the Global Bonds shall be effected through the Depositary, in accordance with the provisions of this Twenty-seventh Supplemental Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Bonds shall 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 shall require compliance with either subparagraph (a) or (b) below, as applicable, as well as one or more of the other following subparagraphs as applicable:

(a)          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

 

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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 only 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 2.03(a).

(b)          All Other Transfers and Exchanges of Beneficial Interests in Global Bonds . In connection with all transfers and exchanges of beneficial interests (other than a transfer of a beneficial interest in a Global Bond to a Person who takes delivery thereof in the form of a beneficial interest in the same Global Bond), the transferor of such beneficial interest must deliver to the Registrar either:

(i)          both (A) 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 (B) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or

(ii)         both (A) 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 Certificated Bond in an amount equal to the beneficial interest to be transferred or exchanged and (B) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Certificated Bond shall be registered to effect the transfer or exchange referred to in (A) above.

Upon an Exchange Offer by the Company in accordance with Section 2.07 of this Twenty-seventh Supplemental Indenture, the requirements of this Section 2.03(b) 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 notification from the Registrar that all of the requirements for transfer or exchange of beneficial interests in Global Bonds contained in this Twenty-seventh Supplemental Indenture, the Bonds of the Twenty-ninth Series and otherwise applicable under the Securities Act have been satisfied, the Corporate Trustee shall adjust the principal amount of the relevant Global Bonds pursuant to Section 2.09 of this Twenty-seventh Supplemental Indenture.

(c)          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 clause (b) above and the Registrar receives the following:

(i)          if the transferee shall take delivery in the form of a beneficial interest in the Rule 144A Global Bond, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications in Item (1) thereof; or

 

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(ii)         if the transferee shall take delivery in the form of a beneficial interest in the Regulation S Global Bond, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications in Item (2) thereof.

(d)         Transfer and Exchange of Beneficial Interests in a Restricted Global Bond for Beneficial Interests in the 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 clause (b) above and:

(i)          such exchange or transfer is effected pursuant to an 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, is not (A) a Broker-Dealer, (B) a Person participating in the distribution of the Exchange Securities or (C) a Person who is an affiliate (as defined in Rule 144) of the Company;

(ii)         any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;

(iii)       any such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

(iv)

the Registrar receives the following:

(A)        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 D hereto, including the certifications in Item (1)(a) thereof; or

(B)        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 (iv), 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 not required in order to maintain compliance with the Securities Act.

If any such transfer is effected pursuant to subparagraph (ii) or (iv) 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 Article II of the Indenture, the Corporate Trustee shall authenticate one or more Unrestricted Global Bonds in an aggregate principal amount equal to the principal amount of beneficial interests transferred pursuant to subparagraph (ii) or (iv) above.

 

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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.

Section 2.04

Transfer of Beneficial Interests for Certificated Bonds .

(a)          Beneficial Interests in Restricted Global Bonds to Restricted Certificated Bonds . If any holder of a beneficial interest in a Restricted Global Bond proposes to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Certificated Bond, then, upon receipt by the Registrar of the following documentation:

(i)          if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (1) thereof;

(ii)         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 under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (2) thereof;

(iii)       if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (3)(a) thereof;

(iv)       if such beneficial interest is being transferred in reliance on any other exemption from the registration requirements of the Securities Act, other than those listed in subparagraphs (i) through (iii) above, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications, certificates and any Opinion of Counsel required by Item (3) thereof, if applicable;

(v)         if such beneficial interest 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

(vi)       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 Corporate Trustee, upon notice of receipt of such documentation by the Registrar, shall cause the aggregate principal amount of the applicable Global Bond to be reduced accordingly pursuant to Section 2.09 of this Article, and the Company shall execute and the Corporate Trustee shall authenticate and make available for delivery to the Person designated in the instructions a Certificated Bond in the appropriate principal amount. Any Certificated Bond issued to a Person who takes delivery thereof in the form of a Certificated Bond pursuant to this Section 2.04 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 Corporate

 

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Trustee shall make available for delivery such Certificated Bonds to the Persons in whose names such Bonds of the Twenty-ninth Series are so registered. Any Certificated Bond issued to a Person who takes delivery thereof in the form of a Certificated Bond pursuant to this Section 2.04 shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

Notwithstanding Sections 2.02 and 2.04 (a)(ii) hereof, a beneficial interest in the Regulation S Global Bond may not be (a) exchanged for a Certificated Bond prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(B) under the Securities Act or (b) transferred to a Person who takes delivery thereof in the form of a Certificated Bond prior to the conditions set forth in clause (a) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

(b)          Beneficial Interests in Restricted Global Bonds to Unrestricted Certificated Bonds . Notwithstanding Section 2.04(a) hereof, a holder of a beneficial interest in a Restricted Global Bond may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Certificated Bond only if:

(i)          such transfer is effected pursuant to an Exchange Offer in accordance with the Registration Rights Agreement and the transferee is not (A) a broker-dealer, (B) a Person participating in the distribution of the Exchange Securities or (C) a Person who is an affiliate (as defined in Rule 144) of the Company;

(ii)         any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;

(iii)       any such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

(iv)        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 Certificated Bond that does not bear the Private Placement Legend, the Registrar receives a certificate from such holder in the form of Exhibit C hereto, including the certifications in Item (4) thereof; and an Opinion of Counsel in form reasonably acceptable to the Company, to the effect that such transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are not required in order to maintain compliance with the Securities Act.

(c)          Beneficial Interests in Unrestricted Global Bonds to Unrestricted Certificated Bonds . If any holder of a beneficial interest in an Unrestricted Global Bond proposes to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Certificated Bond, then, upon notice by the Registrar of satisfaction of the conditions set forth in Section 2.03(b) of this Article, the Corporate Trustee shall cause the aggregate principal amount of the applicable Global Bond to be reduced accordingly pursuant to Section 2.09 of this Article, and the Company shall execute and the Corporate Trustee shall authenticate and make available for delivery to the Person designated in the instructions a Certificated Bond in the appropriate

 

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principal amount. Any Certificated Bond issued to a Person who shall take delivery thereof in the form of a Certificated Bond pursuant to this Section 2.04(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 Corporate Trustee shall make available for delivery such Certificated Bonds to the Persons in whose names such Bonds of the Twenty-ninth Series are so registered. Any Certificated Bond issued to a Person who shall take delivery thereof in the form of a Certificated Bond pursuant to this Section 2.04(c) shall not bear the Private Placement Legend. A beneficial interest in an Unrestricted Global Bond cannot be transferred to a Person who takes delivery thereof in the form of a Certificated Bond bearing the Private Placement Legend.

Section 2.05.

Transfer and Exchange of Certificated Bonds for Beneficial Interests .

(a)          Restricted Certificated Bonds to Beneficial Interests in Restricted Global Bonds . If any Holder of a Restricted Certificated Bond proposes to exchange such Bonds of the Twenty-ninth Series for a beneficial interest in a Restricted Global Bond or to transfer such Certificated 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:

(i)          if the Holder of such Restricted Certificated Bond proposes to exchange such Bonds of the Twenty-ninth Series 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;

(ii)         if such Certificated Bond is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (1) thereof;

(iii)       if such Certificated Bond is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (2) thereof;

(iv)       if such Certificated Bond is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit C hereto, including the certifications in Item (3)(a) thereof;

(v)         if such Certificated Bond is being transferred in reliance on any ot