Exhibit 4.1
TO BE RECORDED AND WHEN
RECORDED RETURN TO:
Hunton Andrews Kurth LLP
550 South Hope Street, Suite 2000
Los Angeles, CA 90071
Attention: Robert M. Johnson, Esq.
NINTH SUPPLEMENTAL INDENTURE
Dated as of June 3, 2021
SUPPLEMENT TO INDENTURE OF MORTGAGE
Dated as of June 19, 2020
PACIFIC GAS AND ELECTRIC COMPANY
ISSUER (MORTGAGOR)
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE (MORTGAGEE)
TABLE OF CONTENTS
ARTICLE I DEFINITIONS | 1 | |||
ARTICLE II ESTABLISHMENT OF 3.000% FIRST MORTGAGE BONDS DUE 2028 | 3 | |||
ARTICLE III AMENDMENT, SUPPLEMENT AND WAIVER | 5 | |||
ARTICLE IV COVENANTS | 5 | |||
ARTICLE V MISCELLANEOUS | 5 | |||
EXHIBIT A FORM OF 3.000% FIRST MORTGAGE BOND DUE 2028
SCHEDULE 1 MORTGAGE INDENTURE RECORDING INFORMATION
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NINTH SUPPLEMENTAL INDENTURE, dated as of June 3, 2021 (this “Ninth Supplemental Indenture”), by and between PACIFIC GAS AND ELECTRIC COMPANY, a California corporation (the “Company”), as Mortgagor, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as Trustee under the Mortgage Indenture (as hereinafter defined) and Mortgagee (the “Trustee”).
RECITALS OF THE COMPANY
A. The Company and the Trustee are parties to that certain Indenture of Mortgage, dated as of June 19, 2020 (together with all indentures supplemental thereto, the “Mortgage Indenture”), providing for the issuance by the Company of Bonds (as defined in the Mortgage Indenture) from time to time.
B. Under the Mortgage Indenture, the Company is authorized to issue unlimited series of Bonds and establish one or more series of Bonds at any time in accordance with the provisions of the Mortgage Indenture, and the terms of such series of Bonds may be described by a supplemental indenture executed by the Company and the Trustee.
C. Pursuant to Section 3.01 of the Mortgage Indenture, the Company and the Trustee deem it advisable to enter into this Ninth Supplemental Indenture for the purposes of establishing the terms of one series of Bonds.
D. The execution and delivery of this Ninth Supplemental Indenture has been authorized by a Board Resolution (as defined in the Mortgage Indenture).
E. Concurrent with the execution hereof, the Company has caused its counsel to deliver to the Trustee an Opinion of Counsel (as defined in the Mortgage Indenture) pursuant to Section 14.03 of the Mortgage Indenture.
F. The Company has done all things necessary to make this Ninth Supplemental Indenture a valid agreement of the Company in accordance with its terms.
NOW, THEREFORE, the Company and the Trustee agree, for the benefit of each other and the equal and proportionate benefit of all Holders of the Bonds established hereby, as follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, capitalized terms used but not defined herein have the meaning set forth in the Mortgage Indenture.
The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Ninth Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
The following additional definitions are hereby established for purposes of this Ninth Supplemental Indenture and shall have the meanings set forth in this Ninth Supplemental Indenture only for purposes of this Ninth Supplemental Indenture:
“Adjusted Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the applicable Comparable Treasury Price for the Redemption Date. The Adjusted Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
“Comparable Treasury Issue” means, with respect to any Redemption Date, the United States Treasury security selected by the applicable Quotation Agent as having a maturity comparable to the remaining term of the 2028 Bonds to be redeemed (assuming, for such purpose, that the 2028 Bonds matured on the Par Call Date (the “remaining term”)), 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 to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date:
| (1) | the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations; or |
| (2) | if the Quotation Agent obtains fewer than four of such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations so received. |
“DTC” means The Depository Trust Company.
“Original Issue Date” means June 3, 2021.
“Par Call Date” means April 15, 2028.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company for a series of Bonds.
“Redemption Price” means the price at which the 2028 Bonds may be redeemed pursuant to Section 208(a) or Section 208(b) hereto, as applicable.
“Reference Treasury Dealer” means (1) each of Barclays Capital Inc., BofA Securities, Inc., Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC or their respective affiliates or successors and (2) one other primary treasury dealer in certain U.S. government securities 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 Company, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
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ARTICLE II
ESTABLISHMENT OF 3.000% FIRST MORTGAGE BONDS DUE 2028
SECTION 201 Establishment and Designation of the 2028 Bonds.
Pursuant to the terms hereof and Section 3.01 and Article V of the Mortgage Indenture, the Company hereby establishes a fortieth series of Bonds designated as the “3.000% First Mortgage Bonds due 2028” (“2028 Bonds”). The 2028 Bonds may be reopened, from time to time, for issuances of additional Bonds of such series subject to the terms of Article V of the Mortgage Indenture, and any additional Bonds issued and comprising 2028 Bonds shall have identical terms as the 2028 Bonds, except that the issue price, issue date and, in some cases, the first Interest Payment Date may differ.
SECTION 202 Form of 2028 Bonds.
The 2028 Bonds shall be issued in the form of one or more Global Bonds in substantially the form set forth in Exhibit A.
SECTION 203 Principal Amount.
The 2028 Bonds shall be issued in an initial aggregate principal amount of $800,000,000.
SECTION 204 Interest Rate; Stated Maturity; Minimum Denominations.
The 2028 Bonds shall bear interest at the rate of 3.000% per annum and shall have a Stated Maturity of June 15, 2028.
The 2028 Bonds are issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
SECTION 205 No Sinking Fund.
No sinking fund is provided for any of the 2028 Bonds.
SECTION 206 Paying Agent and Bond Registrar.
The Trustee is hereby appointed as initial Paying Agent and initial Bond Registrar for the 2028 Bonds. The Place of Payment of the 2028 Bonds shall be the Corporate Trust Office of the Trustee.
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SECTION 207 Global Securities; Appointment of Depositary for Global Securities.
The 2028 Bonds shall be issued in the form of one or more permanent Global Bonds as provided in Section 3.14 of the Mortgage Indenture and deposited with, or on behalf of, the Depositary, or with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee. The Company hereby initially appoints DTC to act as the Depositary with respect to all 2028 Bonds, and the 2028 Bonds shall initially be registered in the name of Cede & Co., as the nominee of DTC.
The Company and DTC have executed a Blanket Letter of Representations, and the Trustee is hereby authorized, in connection with any successor nominee for DTC or any successor Depositary, to enter into appropriate or comparable arrangements, if necessary, and shall have the same rights with respect to its actions thereunder as it has with respect to its actions under the Mortgage Indenture.
None of the Company, the Trustee, any Paying Agent or any Bond Registrar will have any responsibility or liability for any aspect of Depositary records relating to, or payments made on account of, beneficial ownership interests in a Global Bond or for maintaining, supervising or reviewing any Depositary records relating to such beneficial ownership interests, or for transfers of beneficial interests in the 2028 Bonds or any transactions between the Depositary and beneficial owners.
SECTION 208 Optional Redemption.
(a) Subject to the terms and conditions of the Mortgage Indenture, the 2028 Bonds are redeemable at the option of the Company, in whole or in part at any time prior to the Par Call Date, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the 2028 Bonds to be redeemed; or
(ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the 2028 Bonds to be redeemed that would be due if the 2028 Bonds matured on the Par Call Date (not including any portion of 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 applicable Adjusted Treasury Rate plus 30 basis points,
plus, in either of the above cases, accrued and unpaid interest thereon to, but not including, the Redemption Date.
(b) Subject to the terms and conditions of the Mortgage Indenture, at any time on or after the Par Call Date, the 2028 Bonds are redeemable at the option of the Company in whole or in part, at a Redemption Price equal to 100% of the principal amount of the 2028 Bonds to be redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
(c) The Redemption Price shall be calculated assuming a 360-day year consisting of twelve 30-day months.
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(d) The Company shall calculate the Redemption Price for the redemption of any 2028 Bonds pursuant to Section 208(a) or Section 208(b), and notify the Trustee and, on or before the applicable Redemption Date, deposit with the Trustee or Paying Agent sufficient funds to pay the applicable Redemption Price for the 2028 Bonds to be redeemed on such Redemption Date.
(e) Notice of any redemption pursuant to Section 208(a) or Section 208(b) shall be given (i) to Holders of the 2028 Bonds in the manner set forth in Section 6.04 of the Mortgage Indenture and by e-mail to the Depositary and (ii) to the Trustee in accordance with Section 6.02 of the Mortgage Indenture.
SECTION 209 Other Terms of the 2028 Bonds.
The other terms of the 2028 Bonds shall be as expressly set forth herein and in Exhibit A.
ARTICLE III
AMENDMENT, SUPPLEMENT AND WAIVER
The Trustee and the Company may not modify, amend or supplement this Ninth Supplemental Indenture except as set forth in Article XIV of the Mortgage Indenture as if (a) references in Article XIV to “this Indenture” and “hereto” are deemed to include the Ninth Supplemental Indenture, and (b) references to the Bonds of any series “Outstanding under this Indenture” (or similar expressions and phrases) are deemed to refer only to the 2028 Bonds established hereby and no other Bonds.
ARTICLE IV
COVENANTS
Each of the agreements and covenants of the Company contained in Article VII of the Mortgage Indenture shall apply to the 2028 Bonds established hereby as of the Original Issue Date.
ARTICLE V
MISCELLANEOUS
SECTION 501 Concerning the Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Ninth Supplemental Indenture or the due execution hereof by the Company, or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company. Except as herein otherwise provided, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Ninth Supplemental Indenture other than as set forth in the Mortgage Indenture; and this Ninth Supplemental Indenture is executed and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the Mortgage Indenture, as fully to all intents as if the same were herein set forth at length.
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SECTION 502 Application of Ninth Supplemental Indenture.
Except as provided herein, each and every term and condition contained in this Ninth Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Mortgage Indenture shall apply only to the 2028 Bonds established hereby and not to any other series of Bonds established under the Mortgage Indenture. Except as specifically amended and supplemented by, or to the extent inconsistent with, this Ninth Supplemental Indenture, the Mortgage Indenture shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 503 Headings.
The headings of the several Articles of this Ninth Supplemental Indenture are inserted for convenience of reference, and shall not be deemed to be any part hereof.
SECTION 504 Effective Date.
This Ninth Supplemental Indenture shall be effective upon the execution and delivery hereof by each of the parties hereto.
SECTION 505 Counterparts.
This Ninth Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall together constitute but one and the same instrument. Delivery of an executed Ninth Supplemental Indenture by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 506 Governing Law.
The laws of the State of New York shall govern this Ninth Supplemental Indenture and the 2028 Bonds, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
SECTION 507 Severability.
In case any provision in this Ninth Supplemental Indenture or the 2028 Bonds shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 508 Incorporation by Reference.
The terms of Schedule 1 attached hereto are incorporated herein and made a part hereof by this reference.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed as of the day and year first above written.
| PACIFIC GAS AND ELECTRIC COMPANY, as Issuer (Mortgagor) | ||
| By: | /s/ Margaret K. Becker | |
| Name: Margaret K. Becker | ||
| Title: Vice President and Treasurer | ||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee (Mortgagee) | ||
| By: | /s/ Nathan Turner | |
| Name: Nathan Turner | ||
| Title: Vice President | ||
| A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. |
STATE OF CALIFORNIA | } | |
| } | ||
COUNTY OF SAN FRANCISCO | } |
On May 24, 2021, before me, Jolie F. Ocampo, a notary public, personally appeared Margaret K. Becker, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
/s/ Jolie F. Ocampo |
Signature |
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF FLORIDA | } | |
| } | ||
COUNTY OF DUVAL | } |
On June 1, 2021, before me, Xayyavone Gillmore, a notary public, personally appeared Nathan Turner, a Vice President of The Bank of New York Mellon Trust Company, N.A., who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xayyavone Gillmore |
Signature |
(Seal)
EXHIBIT A
[FORM OF 3.000% FIRST MORTGAGE BOND DUE 2028]
[FORM OF FACE OF BOND]
THIS BOND IS A GLOBAL BOND WITHIN THE MEANING OF THE MORTGAGE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE MORTGAGE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL BOND IS EXCHANGEABLE FOR BONDS REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED IN THE MORTGAGE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR BONDS IN CERTIFICATED FORM, THIS GLOBAL BOND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON THE REVERSE HEREOF:
PRINCIPAL AMOUNT: $800,000,000 | ORIGINAL ISSUE DATE: June 3, 2021 | INTEREST RATE: 3.000% per annum | ||
MATURITY DATE: June 15, 2028 | INTEREST PAYMENT DATES: June 15 and December 15 of each year, commencing December 15, 2021 | THIS BOND IS A: ☒ Global Book-Entry Bond ☐ Certificated Bond | ||
| REGISTERED OWNER: Cede & Co., as nominee of The Depository Trust Company | ||||
A-1
PACIFIC GAS AND ELECTRIC COMPANY
3.000% FIRST MORTGAGE BOND DUE 2028
(Fixed Rate)
No. [•] | Principal Amount: $[•] | |
CUSIP [•] |
PACIFIC GAS AND ELECTRIC COMPANY, a corporation duly organized and existing under the laws of the State of California (herein called the “Company,” which term includes any successor Person pursuant to the applicable provisions of the Mortgage Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company, or registered assigns, the Principal Amount stated above on the Maturity Date stated above, and to pay interest thereon from and including the Original Issue Date stated above or, in the case of a 3.000% First Mortgage Bond Due 2028 issued upon the registration of transfer or exchange, from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on the Interest Payment Dates set forth above and on the Maturity Date stated above at the rate of 3.000% per annum until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Mortgage Indenture, be paid to the Person in whose name this 3.000% First Mortgage Bond Due 2028 (this “Bond”) (or one or more Predecessor Bonds) is registered at the close of business on the Regular Record Date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date; provided, however, that interest payable at the Maturity Date or on a Redemption Date will be paid to the Person to whom principal is payable. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Bond (or one or more Predecessor Bonds) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, as set forth in Section 3.07 of the Mortgage Indenture, notice whereof shall be given to Holders of Bonds of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of the Mortgage Indenture and any securities exchange, if any, on which the Bonds of this series may be listed, and upon such notice as may be required by any such exchange, all as more fully provided in said Mortgage Indenture.
Payments of interest on this Bond will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Bond shall be computed and paid on the basis of the 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Bond (other than the Maturity Date) is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. If the Maturity Date falls on a day that is not a Business Day, the payment of principal, premium, if any, and interest may be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after maturity.
A-2
Payment of principal of, premium, if any, and interest on the Bonds of this series shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Payments of principal of, premium, if any, and interest on the Bonds of this series represented by a Global Bond shall be made by wire transfer of immediately available funds to the Holder of such Global Bond, provided that, in the case of payments of principal and premium, if any, such Global Bond is first surrendered to the Paying Agent. If any of the Bonds of this series are no longer represented by a Global Bond, (i) payments of principal, premium, if any, and interest due on the Maturity Date or on a Redemption Date of such Bonds shall be made at the office of the Paying Agent upon surrender of such Bonds to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Bond Register or (B) by wire transfer to registered Holders of at least $10,000,000 in principal amount of Bonds at such place and to such account at a banking institution in the United States as such Holders may designate in writing to the Trustee at least sixteen (16) days prior to the date for payment.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
A-3
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Bond shall not be entitled to any benefit under the Mortgage Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: June 3, 2021
PACIFIC GAS AND ELECTRIC COMPANY | ||
By |
| |
Name: David Thomason | ||
| Title: Vice President, Chief Financial Officer and Controller | ||
By |
| |
Name: Margaret K. Becker | ||
Title: Vice President and Treasurer | ||
A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Bonds of the series designated as Bonds of the 3.000% First Mortgage Bonds due 2028 referred to in the within-mentioned Mortgage Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: |
| |
Authorized Signatory | ||
Dated: June 3, 2021
A-5
[FORM OF REVERSE OF 3.000% FIRST MORTGAGE BOND DUE 2028]
This 3.000% First Mortgage Bond due 2028 is one of a duly authorized issue of Bonds of the Company (the “Bonds”), issued and issuable in one or more series under and equally secured by an Indenture of Mortgage, dated as of June 19, 2020 (such Mortgage Indenture as originally executed and delivered and as supplemented or amended from time to time thereafter, together with any constituent instruments establishing the terms of particular Bonds, being herein called the “Mortgage Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Mortgage Indenture), and reference is hereby made to the Mortgage Indenture for a description of the property mortgaged, pledged and held in trust, the nature and extent of the security and the respective rights, limitations of rights, duties and immunities of the Company, the Trustee and the Holders of Bonds thereunder and of the terms and conditions upon which Bonds are, and are to be, authenticated and delivered. The acceptance of this Bond shall be deemed to constitute the consent and agreement by the Holder hereof to all of the terms and provisions of the Mortgage Indenture.
The Company shall not be required to make any mandatory redemption or sinking fund payments with respect to the Bonds of this series.
Subject to the terms and conditions of the Mortgage Indenture, the Bonds of this series are also redeemable at the option of the Company (“Optional Redemption”), in whole or in part (a) at any time prior to April 15, 2028 (the “Par Call Date”) at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the Bonds of this series to be redeemed; or
(ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Bonds of this series to be redeemed that would be due if the Bonds of this series matured on the Par Call Date (not including any portion of 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 applicable Adjusted Treasury Rate plus 30 basis points
plus, in either of the above cases, accrued and unpaid interest thereon to, but not including, the Redemption Date; and (b) at any time on or after the Par Call Date, in whole or in part, at a Redemption Price equal to 100% of the principal amount of the Bonds of this series to be redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
For purposes of determining the Redemption Price, the following terms have the following meanings:
“Adjusted Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the applicable Comparable Treasury Price for the Redemption Date. The Adjusted Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
A-6
“Comparable Treasury Issue” means, with respect to any Redemption Date, the United States Treasury security selected by the applicable Quotation Agent as having a maturity comparable to the remaining term of the 2028 Bonds of this series to be redeemed (assuming, for such purpose, that the Bonds of this series matured on the Par Call Date (the “remaining term”)), 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 series of Bonds to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date:
| (1) | the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations; or |
| (2) | if the Quotation Agent obtains fewer than four of such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations so received. |
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company for the Bonds of this series.
“Reference Treasury Dealer” means (1) each of Barclays Capital Inc., BofA Securities, Inc., Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC or their respective affiliates or successors and (2) one other primary treasury dealer in certain U.S. government securities 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 Company, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
Interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to Holders of such Bonds of this series, or one or more Predecessor Bonds, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Mortgage Indenture.
In the case of an Optional Redemption, notice of redemption will be sent not less than 10 days nor more than 60 days prior to the Redemption Date to each Holder of Bonds of this series to be redeemed. If money sufficient to pay the Redemption Price of all Bonds of this series (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent or the Trustee on or prior to the Redemption Date, from and after such Redemption Date such Bonds of this series or portions thereof shall cease to bear interest. The Bonds of this series in denominations larger than $2,000 in principal amount may be redeemed in part but only in integral multiples of $1,000.
In the event of redemption of this Bond in part only, a new Bond or Bonds of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the surrender hereof.
A-7
As provided in the Mortgage Indenture and subject to certain limitations therein set forth, this Bond or any portion of the principal amount hereof will be deemed to have been paid for all purposes of the Mortgage Indenture and to be no longer Outstanding thereunder, and the Company’s entire indebtedness in respect thereof will be satisfied and discharged, if there has been irrevocably deposited with the Trustee or any Paying Agent (other than the Company), in trust, money in an amount which will be sufficient and/or Eligible Obligations, the principal of and interest on which when due, without regard to any reinvestment thereof, will provide moneys which, together with money, if any, deposited with or held by the Trustee or such Paying Agent, will be sufficient to pay when due the principal of and premium, if any, and interest on this Bond when due.
If an Event of Default shall occur and be continuing as provided in the Mortgage Indenture, the Trustee or the Holders of not less than 25% in aggregate principal amount of Bonds then Outstanding, considered as one class, may declare the principal amount of all Bonds then Outstanding to be due and payable immediately by notice in writing to the Company (and to the Trustee if given by Holders); provided, however, that with respect to certain Events of Default relating to bankruptcy, insolvency and similar events, the principal amount of all Bonds then Outstanding shall be due and payable immediately without further action by the Trustee or the Holders.
The Mortgage Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into one or more supplemental indentures for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Mortgage Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, considered as one class; provided, however, that if there shall be Bonds of more than one series Outstanding under the Mortgage Indenture and if a proposed supplemental indenture shall directly affect the rights of the Holders of Bonds of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Bonds of all series so directly affected, considered as one class, shall be required; and provided, further, that if the Bonds of any series shall have been issued in more than one Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of Bonds of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Bonds of all Tranches so directly affected, considered as one class, shall be required; and provided, further, that the Mortgage Indenture permits the Company and the Trustee to enter into one or more supplemental indentures for certain purposes without the consent of any Holders of Bonds. The Mortgage Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of Bonds, on behalf of the Holders of all such Bonds, to waive certain past defaults under the Mortgage Indenture and their consequences. Any such consent or waiver by the Holder of this Bond shall be conclusive and binding upon such Holder and upon all future Holders of this Bond and of any Bond issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Bond.
As provided in and subject to the provisions of the Mortgage Indenture, the Holder of this Bond shall not have the right to institute any proceeding with respect to the Mortgage Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, the
A-8
Holders of at least 25% in aggregate principal amount of the Bonds at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of at least a majority in aggregate principal amount of Bonds at the time Outstanding a direction inconsistent with such written request, and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Bond for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Mortgage Indenture and no provision of this Bond or of the Mortgage Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Bond at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Mortgage Indenture and subject to certain limitations therein set forth, the transfer of this Bond is registrable in the Bond Register, upon surrender of this Bond for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Bond are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee or the Bond Registrar, as the case may be, duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Bonds of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Bonds of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Mortgage Indenture and subject to certain limitations therein set forth, Bonds of this series are exchangeable for a like aggregate principal amount of Bonds of this series and of like tenor of a different authorized denomination, as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company shall not be required to execute or to provide for the registration of the transfer of or the exchange of (A) any Bond of this series during a period of 15 days immediately preceding the date notice is to be given identifying the serial numbers (or with respect to Global Bonds, CUSIP numbers) of the Bonds of this series called for redemption, or (B) any Bond of this series selected for redemption in whole or in part, except the unredeemed portion of any Bond of this series being redeemed in part.
Prior to due presentment of this Bond for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Bond is registered as the owner hereof for all purposes, whether or not this Bond is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
A-9
This Bond shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws thereunder, except to the extent that the Trust Indenture Act shall be applicable.
As provided in the Mortgage Indenture, no recourse shall be had for the payment of the principal of, premium, if any, or interest with respect to this Bond, or any part thereof, or for any claim based hereon or otherwise in respect hereof, or of the indebtedness represented hereby, or upon any obligation, covenant or agreement under the Mortgage Indenture, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any predecessor or successor corporation (either directly or through the Company or a predecessor or successor corporation), whether by virtue of any constitutional provision, statute or rule of law or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that the Mortgage Indenture and all the Bonds are solely corporate obligations and that any such personal liability is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution of the Mortgage Indenture and the issuance of this Bond.
All terms used in this Bond which are not defined herein shall have the meanings assigned to them in the Mortgage Indenture.
A-10
ASSIGNMENT FORM
To assign this Bond, fill in the form below: (I) or (we) assign and transfer this Bond to __________
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ___________________________________________________________________
to transfer this Bond on the books of the Company. The agent may substitute another to act for him.
Date: ___________
Your signature: _________________________ |
| (Sign exactly as your name appears on the face of this Bond) |
| Tax Identification No.: |
SIGNATURE GUARANTEE: |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Bond Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Bond Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-11
SCHEDULE 1
RECORDING INFORMATION
This Schedule 1 is hereby incorporated into and made a part of the Ninth Supplemental Indenture. The Ninth Supplemental Indenture (or a memorandum describing such Ninth Supplemental Indenture) shall be recorded in the Official Records of the County (as defined above) in order to put third parties on record notice with respect thereto.
The Mortgage Indenture was initially recorded in the Official Records of the County on the applicable recording dates and at the applicable instrument numbers set forth in column A below.
The Memorandum of Supplemental First Mortgage Indentures, dated as of August 12, 2020 (the “Memorandum”) was recorded in the Official Records of the County on the applicable recording dates and at the applicable instrument numbers set forth in column B below.
Certain parcels of real property located in certain counties have been released from the lien of the Mortgage Indenture, as set forth in the Partial Release (as defined below). To the extent applicable, the Certificate of Partial Release of Lien, dated as of December 15, 2020 (the “Partial Release”) was recorded in the Official Records of the County on the applicable recording dates and at the applicable instrument numbers set forth in column C below.
The Seventh Supplemental Indenture, dated as of November 16, 2020 (the “Seventh Supplemental Indenture”) was recorded in the Official Records of the County on the applicable recording dates and at the applicable instrument numbers set forth in column D below.
A | B | C | D | |||||
County | Recording Date & (Indenture of Mortgage, | Recording Date & (Memorandum of | Recording Date & (Certificate of Partial | Recording Date (Seventh | ||||
| Alameda | Date: 7/8/2020 Instrument: 2020159002 | Date: 8/19/2020 Instrument: | — | Date: 3/8/2021 Instrument: | ||||
| Alpine | Date: 7/8/2020 Instrument: Ins.000313 | Date: 8/21/2020 Instrument: | — | Date: 2/26/2021 Instrument: | ||||
| Amador | Date: 7/7/2020 Instrument: 2020-0005302 | Date: 8/19/2020 Instrument: 2020-0006984-00 | — | Date: 3/8/2021 Instrument: 20210002728 | ||||
Sch. 1-1
A | B | C | D | |||||
County | Recording Date & (Indenture of Mortgage, | Recording Date & (Memorandum of | Recording Date & (Certificate of Partial | Recording Date (Seventh | ||||
| Butte | Date: 7/7/2020 Instrument: 2020-0026656 | Date: 8/19/2020 Instrument: 2020-0033263 | — | Date: 2/24/2021 Instrument: 2021-0008993 | ||||
| Calaveras | Date: 7/7/2020 Instrument: 2020-008603 | Date: 8/19/2020 Instrument: | — | Date: 2/24/2021 Instrument: 2021- | ||||
| Colusa | Date: 7/13/2020 Instrument: 2020-0002012 | Date: 8/19/2020 Instrument: 2020-0002404 | — | Date: 2/25/2021 Instrument: 2021-0000922 | ||||
| Contra Costa | Date: 7/10/2020 Instrument: 2020-0137967-00 | Date: 8/24/2020 Instrument: 2020-0179597 | — | Date: 3/8/2021 Instrument: 2021-0068856 | ||||
| El Dorado | Date: 7/7/2020 Instrument: 2020-0033173-00 | Date: 8/19/2020 Instrument: 2020-0042892-00 | — | Date: 3/4/2021 Instrument: 2021-0014976 | ||||
| Fresno | Date: 7/7/2020 Instrument: 2020-0084490 | Date: 8/20/2020 Instrument: 2020-0108156 | — | Date: 2/24/2021 Instrument: 2021-0031297 | ||||
| Glenn | Date: 7/8/2020 Instrument: | Date: 8/25/2020 Instrument: | — | Date: 2/25/2021 Instrument: | ||||
| Humboldt | Date: 7/14/2020 Instrument: 2020-011590 | Date: 8/24/2020 Instrument: | — | Date: 3/5/2021 Instrument: | ||||
| Kern | Date: 7/7/2020 Instrument: | Date: 8/19/2020 Instrument: | Date: 12/29/2020 Instrument: 220202055 | Date: 2/24/2021 Instrument: | ||||
| Kings | Date: 7/7/2020 Instrument: | Date: 8/21/2020 Instrument: 2015093 | — | Date: 2/24/2021 Instrument: | ||||
| Lake | Date: 7/7/2020 Instrument: 2020008082 | Date: 8/19/2020 Instrument: | — | Date: 2/24/2021 Instrument: | ||||
| Lassen | Date: 7/8/2020 Instrument: | Date: 8/20/2020 Instrument: | — | Date: 2/25/2021 Instrument: | ||||
Sch. 1-2
A | B | C | D | |||||
County | Recording Date & (Indenture of Mortgage, | Recording Date & (Memorandum of | Recording Date & (Certificate of Partial | Recording Date (Seventh | ||||
| Madera | Date: 7/7/2020 Instrument: 2020015446 | Date: 8/19/2020 Instrument: | — | Date: 3/9/2021 Instrument: | ||||
| Marin | Date: 7/7/2020 Instrument: 2020-0028741 | Date: 8/19/2020 Instrument: 2020-0037600 | — | Date: 2/24/2021 Instrument: 2021-0013112 | ||||
| Mariposa | Date: 7/7/2020 Instrument: | Date: 8/20/2020 Instrument: | — | Date: 3/4/2021 Instrument: | ||||
| Mendocino | Date: 7/7/2020 Instrument: | Date: 8/19/2020 Instrument: 2020- | — | Date: 2/24/2021 Instrument: | ||||
| Merced | Date: 7/7/2020 Instrument: 2020022266 | Date: 8/19/2020 Instrument: 2020028493 | — | Date: 2/24/2021 Instrument: | ||||
| Modoc | Date: 7/7/2020 Instrument: 20200001804 | Date: 8/19/2020 Instrument: 20200002135 | — | Date: 2/24/2021 Instrument: 20210000422 | ||||
| Monterey | Date: 7/7/2020 Instrument: 2020032685 | Date: 8/19/2020 Instrument: | — | Date: 2/24/2021 Instrument: | ||||
| Napa | Date: 7/7/2020 Instrument: 2020-0016006 | Date: 8/20/2020 Instrument: 2020-0020526 | — | Date: 3/4/2021 Instrument: 2021-0008728 | ||||
| Nevada | Date: 7/7/2020 Instrument: 20200015164 | Date: 8/25/2020 Instrument: 20200020840 | — | Date: 3/4/2021 Instrument: 20210007838 | ||||
| Placer | Date: 7/7/2020 Instrument: 2020-0067740 | Date: 8/19/2020 Instrument: 2020-0087937-00 | — | Date: 2/24/2021 Instrument: 2021-0026083-00 | ||||
| Plumas | Date: 7/9/2020 Instrument: 2020-0003422 | Date: 8/20/2020 Instrument: 2020-0004742 | — | Date: 3/11/2021 Instrument: 2021-0001758 | ||||
| Sacramento | Date: 7/7/2020 Instrument: Ins-202007071055 | Date: 8/19/2020 Instrument: 202008190892 | — | Date: 2/24/2021 Instrument: 202102241076 | ||||
Sch. 1-3
A | B | C | D | |||||
County | Recording Date & (Indenture of Mortgage, | Recording Date & (Memorandum of | Recording Date & (Certificate of Partial | Recording Date (Seventh | ||||
| San Benito | Date: 7/7/2020 Instrument: 2020-0007874 | Date: 8/19/2020 Instrument: 2020-0010072 | — | Date: 3/4/2021 Instrument: 2021-0003400 | ||||
| San Bernardino | Date: 7/7/2020 Instrument: 2020-0226134 | Date: 8/19/2020 Instrument: 2020-0294961 | — | Date: 2/24/2021 Instrument: 2021-0087782 | ||||
| San Francisco | Date: 7/7/2020 Instrument: 2020-K949017-00 | Date: 8/19/2020 Instrument: 2020006126 | — | Date: 2/24/2021 Instrument: | ||||
| San Joaquin | Date: 7/7/2020 Instrument: 2020-080390 | Date: 8/19/2020 Instrument: 2020-103840 | — | Date: 2/24/2021 Instrument: 2021- | ||||
| San Luis Obispo | Date: 7/7/2020 Instrument: 2020033897 | Date: 8/19/2020 Instrument: 2020043805 | Date: 3/5/2021 Instrument: 2021017044 | Date: 3/8/2021 Instrument: 2021017458 | ||||
| San Mateo | Date: 7/7/2020 Instrument: 2020064008 | Date: 8/21/2020 Instrument: 2020-084135 | — | Date: 2/24/2021 Instrument: 2021- | ||||
| Santa Barbara | Date: 7/13/2020 Instrument: 2020-0034969 | Date: 8/19/2020 Instrument: 2020-0043690 | — | Date: 2/24/2021 Instrument: 2021-0014736 | ||||
| Santa Clara | Date: 7/7/2020 Instrument: 24528422 | Date: 8/19/2020 Instrument: 24580344 | — | Date: 2/24/2021 Instrument: | ||||
| Santa Cruz | Date: 7/7/2020 Instrument: 2020-0024403 | Date: 8/19/2020 Instrument: 2020-0031634 | — | Date: 2/24/2021 Instrument: 2021-0011369 | ||||
| Shasta | Date: 7/7/2020 Instrument: 2020-0021039 | Date: 8/19/2020 Instrument: 2020-0027008 | Date: 12/29/2020 Instrument: 2020-0047326 | Date: 2/24/2021 Instrument: 2021-0007584 | ||||
| Sierra | Date: 7/9/2020 Instrument: 2020171226 | Date: 8/20/2020 Instrument: 2020171540 | — | Date: 2/25/2021 Instrument: | ||||
| Solano | Date: 7/7/2020 Instrument: Ins-202000054277 | Date: 8/19/2020 Instrument: 202000069597 | — | Date: 2/24/2021 Instrument: 202100021149 | ||||
Sch. 1-4
A | B | C | D | |||||
County | Recording Date & (Indenture of Mortgage, | Recording Date & (Memorandum of | Recording Date & (Certificate of Partial | Recording Date (Seventh | ||||
| Sonoma | Date: 7/9/2020 Instrument: 2020055917 | Date: 8/19/2020 Instrument: | — | Date: 2/24/2021 Instrument: | ||||
| Stanislaus | Date: 7/8/2020 Instrument: 2020-0047771 | Date: 8/19/2020 Instrument: 2020-0061515-00 | — | Date: 2/24/2021 Instrument: 2021-0017942-00 | ||||
| Sutter | Date: 7/8/2020 Instrument: 2020-0009800 | Date: 8/19/2020 Instrument: 2020-0012784 | — | Date: 2/24/2021 Instrument: 20210003735 | ||||
| Tehama | Date: 7/7/2020 Instrument: 2020007674 | Date: 8/19/2020 Instrument: | — | Date: 2/24/2021 Instrument: | ||||
| Trinity | Date: 7/8/2020 Instrument: 202002224 | Date: 8/20/2020 Instrument: | — | Date: 2/25/2021 Instrument: | ||||
| Tulare | Date: 7/7/2020 Instrument: 2020-0039416 | Date: 8/26/2020 Instrument: 2020-0049011 | — | Date: 3/2/2021 Instrument: 2021-0015218 | ||||
| Tuolumne | Date: 7/7/2020 Instrument: 2020007628 | Date: 8/19/2020 Instrument: | — | Date: 3/2/2021 Instrument: | ||||
| Yolo | Date: 7/8/2020 Instrument: 2020-0020467 | Date: 8/19/2020 Instrument: 2020-0026550 | Date: 3/8/2021 Instrument: 2021-0009289 | |||||
| Yuba | Date: 7/8/2020 Instrument: 2020-010218 | Date: 8/19/2020 Instrument: 2020- | — | Date: 2/24/2021 Instrument: 2021- | ||||
Sch. 1-5