Exhibit 4(g)
COLUMBUS SOUTHERN POWER COMPANY
TO
BANK ONE, N.A.
AS TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 1, 2003
$250,000,000
6.60% SENIOR NOTES, SERIES B DUE 2033
6.60% SENIOR NOTES, SERIES D DUE 2033
TABLE OF CONTENTS *
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2
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SECTION
1.01. Definitions
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2
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4
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SECTION
2.01. Establishment
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4
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SECTION
2.02. Aggregate Principal Amount
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4
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SECTION
2.03. Maturity and Interest
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4
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SECTION
2.04. Optional Redemption
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5
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SECTION
2.05. Limitation on Secured Debt.
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6
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SECTION
2.06. Global Securities and Certificated
Securities
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6
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SECTION
2.07. Form of Securities
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8
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SECTION
2.08. Transfer and Exchange
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8
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ARTICLE
III Miscellaneous Provisions
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13
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SECTION
3.01. Recitals by Company
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13
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SECTION
3.02. Ratification and Incorporation of Original
Indenture
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13
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SECTION
3.03. Executed in Counterparts
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13
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13
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SECTION
3.05. Applicability of Section 4.05 and Article Ten of
Original Indenture
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* This Table of Contents does not
constitute part of the Indenture or have any bearing upon the
interpretation of any of its terms and
provisions.
THIS SECOND SUPPLEMENTAL INDENTURE is
made as of the 1 st day of February, 2003, between
COLUMBUS SOUTHERN POWER COMPANY, a corporation duly organized and
existing under the laws of the state of Ohio (herein called the
“Company”), having its principal office at 1 Riverside
Plaza, Columbus, Ohio 43215 and Bank One, N.A., a national banking
association, duly organized and existing under the laws of the
United States, having its principal corporate trust office at 1111
Polaris Parkway, Columbus, Ohio 43240, as Trustee (herein called
the “Trustee”).
W I T N E S S E T
H:
WHEREAS, the Company has heretofore
entered into an Indenture, dated as of February 1, 2003 (the
“Original Indenture”), with the Trustee;
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture,
as supplemented by this Second Supplemental Indenture, is herein
called the “Indenture”;
WHEREAS, under the Original Indenture, a
new series of unsecured notes (the “Senior Notes”) may
at any time be established by the Board of Directors of the Company
in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture
executed by the Company and the Trustee;
WHEREAS, the Company proposes to create
under the Indenture a series of Senior Notes to be designated the
“6.60% Senior Notes, Series B due 2033” (the
“Series B Notes”) and a series of Senior Notes to be
designated the “6.60% Senior Notes, Series D due 2033”
(the “Series D Notes”; and together with the Series B
Notes the “2033 Notes”), the form and substance of the
2033 Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Original Indenture and this Second
Supplemental Indenture;
WHEREAS, concurrently with the issuance
of the Series B Notes, the Company proposes to create under the
Indenture a series of Senior Notes to be designated the
“5.50% Series Notes Series A, due 2013” (the
“Series A Notes”) and a series of Senior Notes to be
designated the “5.50% Senior Notes, Series C, due 2013”
(the “Series C Notes”; and together with the Series A
Notes, the “2013 Notes”), the form and substance of the
2013 Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Original Indenture and the First
Supplemental Indenture;
WHEREAS, additional Senior Notes of
other series hereafter established, except as may be limited in the
Original Indenture as at the time supplemented and modified, may be
issued from time to time pursuant to the Indenture as at the time
supplemented and modified; and
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Second Supplemental
Indenture and to make it a valid and binding obligation of the
Company have been done or performed.
NOW, THEREFORE, in consideration of the
agreements and obligations set forth herein and for other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Additional
Definitions
SECTION 1.01.
Definitions
The following defined terms used herein
shall, unless the context otherwise requires, have the meanings
specified below. Capitalized terms used herein for which no
definition is provided herein shall have the meanings set forth in
the Original Indenture.
“Clearstream” means
Clearstream Banking, société anonyme, or any successor
securities clearing agency.
“Distribution Compliance
Period,” with respect to the 2033 Notes, means the period of
40 consecutive days beginning on and including the later of (i) the
day on which such 2033 Notes are first offered to Persons other
than distributors (as defined in Regulation S under the Securities
Act) in reliance on Regulation S and (ii) the Original Issue
Date.
“DTC” means The Depository
Trust Company, the initial Clearing Agency.
“Euroclear” means Euroclear
Bank S.A./N.V., as operator of the Euroclear System or any
successor securities clearing agency.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Exchange Offer Registration
Statement” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Global Securities” means
global certificates representing the 2033 Notes as described in
Section 204.
“Holder” means a registered
holder of a 2033 Note.
“Institutional Accredited
Investor” has the meaning set forth in Section 2.04(a)
hereof.
“Columbus Southern Wires Exchange
Offer” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Columbus Southern Wires
Notes” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Original Issue Date” means
February 14, 2003.
“Owner” means each Person
who is the beneficial owner of a Global Security as reflected in
the records of the Depository or, if a Depository participant is
not the Owner, then as reflected in the records of a Person
maintaining an account with such Depository (directly or
indirectly, in accordance with the rules of such
Depository).
“Permanent Regulation S Global
Security” has the meaning set forth in Section
2.04(b).
“QIBs” means qualified
institutional buyers as defined in Rule 144A.
“Registered Exchange Offer”
shall have the meaning assigned to Exchange Offer in the
Registration Rights Agreement
“Registration Rights
Agreement” means the Registration Rights Agreement, dated as
of February 1, 2003 among the Company and the Initial
Purchasers named therein, relating to the registration of the 2033
Notes and the 2013 Notes under the Securities Act.
“Regulation S” means
Regulation S under the Securities Act and any successor regulation
thereto.
“Rule 144” means Rule 144
under the Securities Act, as such rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
“Rule 144A” means Rule 144A
under the Securities Act, as such rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
“Rule 144A Global Security”
means any Series A Note that is to be traded pursuant to Rule
144A.
“Securities Act” means the
Securities Act of 1933, as amended from time to time, or any
successor legislation.
“Securities Custodian” means
the custodian with respect to a Global Security (as appointed by
the Depository), or any successor Person thereto and shall
initially be the Trustee.
“Shelf Registration
Statement” shall have the meaning assigned to it in the
Registration Rights Agreement.
“Special Interest Premium”
shall have the meaning assigned to it in the Registration Rights
Agreement.
“Stated Maturity” means
March 1, 2033.
“Subsidiary” means any
corporation or other entity of which sufficient voting stock or
other ownership or economic interests having ordinary voting power
to elect a majority of the board of directors (or equivalent body)
are at the time directly or indirectly held by the
Company.
“Temporary Regulation S Global
Security” has the meaning set forth in Section
2.04(b).
“Transfer Restricted
Security” shall have the meaning assigned to Registrable Note
in the Registration Rights Agreement.
“Transmission and Distribution
Business” has the meaning set forth in Section
3.05(a).
2033
Notes
SECTION 2.01.
Establishment The Series B Notes shall be designated
as the Company’s “6.60% Senior Notes, Series B due
2033” and the Series D Notes shall be designated as the
Company’s “6.60% Senior Notes, Series D due
2033”. The Series B Notes and the Series D Notes shall be
treated for all purposes under the Indenture as a single class or
series of Senior Notes.
SECTION 2.02. Aggregate
Principal Amount The Trustee shall authenticate and
deliver (i) Series B Notes for original issue on the Original Issue
Date in the aggregate principal amount of $250,000,000 and (ii)
Series D Notes from time to time thereafter for issue only in
exchange for Series B Notes pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights
Agreement or pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement, in each case
upon a Company Order for authentication and delivery thereof and
satisfaction of Section 2.01 of the Original Indenture. The
aggregate principal amount of the 2033 Notes shall be initially
limited to $250,000,000 and shall be subject to Periodic Offerings
pursuant to Article Two of the Original Indenture. All 2033 Notes
need not be issued at the same time and such series may be reopened
at any time, without the consent of any Holder, for issuances of
additional 2033 Notes. Any such additional 2033 Notes will have the
same interest rate, maturity and other terms as those initially
issued. The Series B Notes shall be issued in definitive fully
registered form.
SECTION 2.03. Maturity
and Interest (i) The 2033 Notes
shall mature on, and the date on which the principal of the 2033
Notes shall be payable (unless earlier redeemed) shall
be, March 1, 2033;
(ii) the interest
rate at which the 2033 Notes shall bear interest shall be 6.60% per
annum; provided, however, that the Special Interest Premium shall
accrue on the 2033 Notes under certain circumstances as provided in
clause (iii) below; interest shall accrue from the date of
authentication of the 2033 Notes; the Interest Payment Dates on
which such interest will be payable shall be March 1 and September
1, and the Regular Record Date for the determination of holders to
whom interest is payable on any such Interest Payment Date shall be
the February 15 or August 15 preceding the relevant Interest
Payment Date; provided that the first Interest Payment Date shall
be September 1, 2003 and interest payable on the Stated Maturity or
any redemption date shall be paid to the Person to whom principal
shall be paid; each payment of interest shall include interest
accrued through the day before the Interest Payment
Date;
(iii) Special
Interest Premium shall accrue (a) on the Transfer Restricted
Securities over and above the interest rate set forth herein in
accordance with Section 2(e) of the Registration Rights Agreement
and (b) on the 2033 Notes over and above the interest rate set
forth herein in accordance with Section 7(d) or 7(e), as the case
may be, of the Registration Rights Agreement.
SECTION 2.04. Optional
Redemption The 2033 Notes shall be redeemable at the
option of the Company, in whole at any time or in part from time to
time, upon not less than thirty but not more than sixty days’
previous notice given by mail to the registered owners of the Notes
at a redemption price equal to the greater of (i) 100% of the
principal amount of the 2033 Notes being redeemed and (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest on the 2033 Notes being redeemed (excluding
the portion of any such interest accrued to the date of redemption)
discounted (for purposes of determining present value) to the
redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as
defined below) plus 30 basis points, plus, accrued interest thereon
to the date of redemption.
“Treasury Rate” means, with
respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue”
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to
the remaining term of the 2033 Notes that would be utilized, at the
time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the 2033
Notes.
“Comparable Treasury Price”
means, with respect to any redemption date, (i) the average of the
bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated
“Composite 3:30 p.m. Quotations for U. S. Government
Securities” or (ii) if such release (or any successor
release) is not published or does not contain such prices on such
third Business Day, the Reference Treasury Dealer Quotation for
such redemption date.
“Independent Investment
Banker” means one of the Reference Treasury Dealers appointed
by the Company and reasonably acceptable to the Trustee.
“Reference Treasury Dealer”
means a primary U.S. government securities dealer selected by the
Company and reasonably acceptable to the Trustee.
“Reference Treasury Dealer
Quotation” means, with respect to the Reference Treasury
Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at or before 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
SECTION 2.05.
Limitation on Secured Debt So long as any of the
2033 Notes are outstanding, the Company shall not create or suffer
to be created or to exist or permit any of its Subsidiaries to
create or permit or suffer to be created or to exist any additional
mortgage, pledge, security interest, or other lien (collectively
“Liens”) on any utility properties or tangible assets
now owned or hereafter acquired by the Company or its Subsidiaries
to secure any indebtedness for borrowed money (“Secured
Debt”), without providing that such 2033 Notes will be
similarly secured. Further, this restriction on Secured Debt does
not apply to the Company’s existing first mortgage bonds that
have previously been issued under its mortgage indenture or any
indenture supplemental thereto; provided that this restriction will
apply to future issuances thereunder (other than issuances of
refunding first mortgage bonds). In addition, this restriction does
not prevent the creation or existence of:
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Liens
on property existing at the time of acquisition or construction of
such property (or created within one year after completion of such
acquisition or construction), whether by purchase, merger,
construction or otherwise, or to secure the payment of all or any
part of the purchase price or construction cost thereof, including
the extension of any Liens to repairs, renewals, replacements,
substitutions, betterments, additions, extensions and improvements
then or thereafter made on the property subject thereto;
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Financing of the Company’s
accounts receivable for electric service;
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Any
extensions, renewals or replacements (or successive extensions,
renewals or replacements), in whole or in part, of Liens permitted
by the foregoing clauses; and
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The
pledge of any bonds or other securities at any time issued under
any of the Secured Debt permitted by the above clauses.
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In addition to the permitted issuances
above, Secured Debt not otherwise so permitted may be issued in an
amount that does not exceed 15% of Net Tangible Assets as defined
below.
“Net Tangible Assets” means
the total of all assets (including revaluations thereof as a result
of commercial appraisals, price level restatement or otherwise)
appearing on the Company’s balance sheet, net of applicable
reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount, energy trading
contracts, regulatory assets, deferred charges and all other like
intangible assets (which term shall not be construed to include
such revaluations), less the aggregate of the Company’s
current liabilities appearing on such balance sheet.
This restriction also will not apply to
or prevent the creation or existence of leases (operating or
capital) made, or existing on property acquired, in the ordinary
course of business.
SECTION 2.06. Global
Securities and Certificated Securities
(a)
General . The Series B Notes will be resold initially only
to (i) QIBs in reliance on Rule 144A under the Securities Act
(“Rule 144A”), (ii) institutional “accredited
investors” as such term is defined in rule 501(a)(1), (2),(3)
and (7) of Regulation D under the Securities Act (each, an
“Institutional Accredited Investor”) and (iii) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on
Regulation S under the Securities Act (“Regulation S”).
Series B Notes may thereafter be transferred to, among others,
QIBs, purchasers in reliance on Regulation S, and Institutional
Accredited Investors in each case, subject to the restrictions on
transfer set forth herein.
(i) Form
. Series B Notes initially resold pursuant to Rule 144A shall be
issued initially in the form of one or more permanent Global
Securities in definitive, fully registered form (collectively, the
“Rule 144A Global Security”) and Series B Notes
initially resold pursuant to Regulation S and shall be issued
initially in the form of one or more temporary global securities in
definitive, fully registered form (collectively, the
“Temporary Regulation S Global Security”), in each case
without interest coupons and with the global securities legend and
restricted securities legend set forth in Exhibit A hereto, which
shall be deposited on behalf of the purchasers of the Series B
Notes represented thereby with the Securities Custodian, and
registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the
Trustee as provided in the Indenture. Except as set forth in this
Section 2.06, beneficial ownership interests in the Temporary
Regulation S Global Security (x) will not be exchangeable for
interests in the Rule 144A Global Security, the permanent global
security (the “Permanent Regulation S Global
Security”), or any other security without a legend containing
restrictions on transfer of such security prior to the expiration
of the Distribution Compliance Period and (y) then may be exchanged
for interests in a Rule 144A Global Security or the Permanent
Regulation S Global Security only upon certification that
beneficial ownership interests in such Temporary Regulation S
Global Security are owned either by non-U.S. persons or U.S.
persons who purchased such interests in a transaction that did not
require registration under the Securities Act.
The Rule 144A Global Security, the
Temporary Regulation S Global Security and the Permanent Regulation
S Global Security are collectively referred to herein as
“Global Securities”. The aggregate principal amount of
the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the
Depository or its nominee as hereinafter provided.
(ii)
Book-Entry Provisions . This Section shall apply only to a
Global Security deposited with or on behalf of the Depository. The
Company shall execute and the Trustee shall, in accordance with
this Section 2.06(b)(ii), authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of
the Depository for such Global Security or Global Securities or the
nominee of such Depository and (b) shall be delivered by the
Trustee to such Depository or pursuant to such Depository’s
instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the
Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their
behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Company, the
Trustee and any agent of the Company or the Trustee shall be
entitled to treat the Depository as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
To the extent a notice or other
communication to the beneficial owners of the 2033 Notes is
required under the Indenture, unless and until Certificated
Securities shall have been issued to such owners, the Trustee shall
give all such notices and communications specified herein to be
given to such owners to the Depository, and shall have no
obligations to such Owners.
(c)
Certificated Securities . Series B Notes sold to
Institutional Accredited Investors shall be issued initially in the
form of a fully registered, certificated Series B Note
(“Certificated Securities”). Except as provided in this
Section 2.06, owners of beneficial interests in Global Securities
shall not be entitled to receive physical delivery of Certificated
Securities.
Global Securities shall be exchangeable
for Certificated Securities if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as Depository
for the Global Securities or (y) shall no longer be registered or
in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depository for the Global
Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition.
Upon surrender to the Trustee of the typewritten certificate or
certificates representing the Global Securities by the Depository,
accompanied by registration instructions, the Trustee shall execute
and authenticate the certificates in accordance with the
instructions of the Depository. Neither the Security Registrar nor
the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Certificated
Securities, the Trustee shall recognize the Holders of the
Certificated Securities as Holders. The Certificated Securities
shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Company, as
evidenced by the execution thereof by the Company, and shall bear
the legend set forth on Exhibit A hereto unless the Company informs
the Trustee that such legend is no longer required.
SECTION 2.07. Form of
Securities The Global Securities and Certificated
Securities shall be substantially in the form attached as Exhibit A
thereto.
SECTION 2.08. Transfer
and Exchange
(a)
General . The 2033 Notes may not be transferred except in
compliance with the legend contained in Exhibit A unless otherwise
determined by the Company in accordance with applicable law.
No service charge will be made for any transfer or exchange of 2033
Notes, but payment will be required of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection therewith.
(b)
Transfer and Exchange of Global Securities .
(i) If a holder
of a beneficial interest in the Rule 144A Global Security wishes at
any time to exchange its interest in the Rule 144A Global Security
for an interest in the Permanent Regulation S Global Security, or
to transfer its interest in the Rule 144A Global Security to a
person who wishes to take delivery thereof in the form of an
interest in the Permanent Regulation S Global Security, such holder
may, subject to the rules and procedures of the Depository and to
the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in the Permanent
Regulation S Global Security. Upon receipt by the Trustee, as
transfer agent, of (1) instructions given in accordance with the
Depository’s procedures from or on behalf of a holder of a
beneficial interest in the Rule 144A Global Security, directing the
Trustee, as transfer agent, to credit or cause to be credited a
beneficial interest in the Permanent Regulation S Global Security
in an amount equal to the beneficial interest in the Rule 144A
Global Security to be exchanged or transferred, (2) a written order
given in accordance with the Depository’s procedures
containing information regarding the Euroclear or Clearstream
account to be credited with such increase and the name of such
account, and (3) a certificate in the form of Exhibit C hereto
given by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made pursuant to and
in accordance with Rule 903 or Rule 904 of Regulation S under the
Securities Act, the Trustee, as transfer agent, shall promptly
deliver appropriate instructions to the Depository, its nominee, or
the custodian for the Depository, as the case may be, to reduce or
reflect on its records a reduction of the Rule 144A Global Security
by the aggregate principal amount of the beneficial interest in
such Rule 144A Global Security to be so exchanged or transferred
from the relevant participant, and the Trustee, as transfer agent,
shall promptly deliver appropriate instructions to the Depository,
its nominee, or the custodian for the Depository, as the case may
be, concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Permanent
Regulation S Global Security by the aggregate principal amount of
the beneficial interest in such Rule 144A Global Security to be so
exchanged or transferred, and to credit or cause to be credited to
the account of the person specified in such instructions (who may
be Euroclear or Clearstream or another agent member of Euroclear or
Clearstream or both, as the case may be, acting for and on behalf
of them) a beneficial interest in such Permanent Regulation S
Global Security equal to the reduction in the principal amount of
such Rule 144A Global Security.
(ii) If a holder
of a beneficial interest in the Permanent Regulation S Global
Security wishes at any time to exchange its interest in the
Permanent Regulation S Global Security for an interest in the Rule
144A Global Security, or to transfer its interest in the Permanent
Regulation S Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Rule 144A Global
Security, such holder may, subject to the rules and procedures of
Euroclear or Clearstream and the Depository, as the case may be,
and to the requirements set forth in the following sentence,
exchange or cause the exchange or transfer or cause the transfer of
such interest for an equivalent beneficial interest in such Rule
144A Global Security. Upon receipt by the Trustee, as transfer
agent, of (1) instructions given in accordance with the procedures
of Euroclear or Clearstream and the Depository, as the case may be,
from or on behalf of a beneficial owner of an interest in the
Permanent Regulation S Global Security directing the Trustee, as
transfer agent, to credit or cause to be credited a beneficial
interest in the Rule 144A Global Security in an amount equal to the
beneficial interest in the Permanent Regulation S Global Security
to be exchanged or transferred, (2) a written order given in
accordance with the procedures of Euroclear or Clearstream and the
Depository, as the case may be, containing information regarding
the account with the Depository to be credited with such increase
and the name of such account, and (3) prior to the expiration of
the Distribution Compliance Period, a certificate in the form of
Exhibit C hereto given by the holder of such beneficial interest
and stating that the person transferring such interest in such
Permanent Regulation S Global Security reasonably believes that the
person acquiring such interest in the Rule 144A Global Security is
a QIB and is obtaining such beneficial interest for its own account
or the account of a QIB in a transaction meeting the requirements
of Rule 144A and any applicable securities laws of any state of the
United States or any other jurisdiction, the Trustee, as transfer
agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as
the case may be, to reduce or reflect on its records a reduction of
the Permanent Regulation S Global Security by the aggregate
principal amount of the beneficial interest in such Permanent
Regulation S Global Security to be exchanged or transferred, and
the Trustee, as transfer agent, shall promptly deliver appropriate
instructions to the Depository, its nominee, or the custodian for
the Depository, as the case may be, concurrently with such
reduction, to increase or reflect on its records an increase of the
principal amount of the Rule 144A Global Security by the aggregate
principal amount of the beneficial interest in the Permanent
Regulation S Global Security to be so exchanged or transferred, and
to credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Rule
144A Global Security equal to the reduction in the principal amount
of the Permanent Regulation S Global Security. After the expiration
of the Distribution Compliance Period, the certification
requirement set forth in clause (3) of the second sentence of this
Section 2.08(b)(ii) will no longer apply to such exchanges and
transfers.
(iii) Any
beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an
interest in the other Global Securities will, upon transfer, cease
to be an interest in such Global Security and become an interest in
the other Global Securities and, accordi
