EXHIBIT 10.73
CE ELECTRIC UK FUNDING COMPANY
and
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Exchange Agent/Registrar and Transfer Agent
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
6.853%Senior Notes Due 2004
6.995%Senior Notes Due 2007
First Supplemental Indenture
Dated as of December 15, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of December 15, 1997
(herein called the "First Supplemental Indenture"), among CE ELECTRIC UK FUNDING
COMPANY, an unlimited company incorporated under the laws of England and
Wales (hereinafter called the "Company"), and THE BANK OF NEW YORK, as Trustee
(hereinafter called the "Trustee"), Principal Paying Agent, Securities Exchange
Agent/Registrar and Transfer Agent under the Original Indenture referred to
below, and BANQUE INTERNATIONALE A LUXEMBOURG S.A., a societe anonyme organized
and existing under the laws of the Grand Duchy of Luxembourg, as Paying Agent
and Transfer Agent under the Original Indenture.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture dated as of December 15, 1997 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), the form and terms of which are to be established as set
forth in Sections 201 and 301 of the Original Indenture.
WHEREAS, Section 901 of the Original Indenture provides, among
other things, that the Company and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the purpose of
establishing the form and terms of the Securities of any series as permitted in
Sections 201 and 301 of the Original Indenture and of appointing an
Authenticating Agent with respect to the Securities of any series;
WHEREAS, the Company desires to create two series of the
Securities, one series of Securities in an aggregate principal amount of
one-hundred and twenty-five million dollars ($125,000,000) to be designated the
"6.853% Senior Notes Due 2004" and one series of the Securities in an aggregate
principal amount of two-hundred and thirty-seven million dollars ($237,000,000)
to be designated the "6.995% Senior Notes Due 2007" (collectively the "Senior
Notes"), and all action on the part of the Company necessary to authorize the
issuance of the Senior Notes under the Original Indenture and this First
Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior
Notes, when executed by the Company and authenticated and delivered by the
Trustee as provided in the Original Indenture, the valid and binding obligations
of the Company and to constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
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That in consideration of the premises and of the acceptance
and purchase of the Senior Notes by the holders thereof and of the acceptance of
this trust by the Trustee, the Company covenants and agrees with the Trustee,
for the equal benefit of holders of the Senior Notes, as follows:
ARTICLE I.
Definitions
The use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the Original Indenture
and the forms of Senior Notes attached hereto as Exhibits A and B, respectively.
In addition, for all purposes of this First Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise expressly requires,
the following terms shall have the respective meanings assigned to them as
follows and shall be construed as if defined in Article I of the Original
Indenture:
"Book-Entry Depositary" means the person designated by the
Company (i) initially, as set forth in Section 301 of this First Supplemental
Indenture, or (ii) as specified in the Deposit Agreement as Book-Entry
Depositary, or its nominee or the custodian of either, until a successor
Book-Entry Depositary shall have become such pursuant to the applicable
provisions of the Deposit Agreement, and thereafter "Book-Entry Depositary"
shall mean such successor Book-Entry Depositary or its nominee or the custodian
of either.
"Definitive Registered Senior Notes" means a Senior Note of
either series modified from the applicable forms set forth in Exhibits A and B
to this First Supplemental Indenture by means of such insertions, deletions,
substitutions and other variations in accordance with Article II of the Original
Indenture as would be appropriate for Senior Notes of such series in definitive
registered form.
"Deposit Agreement" means the Deposit Agreement, dated as of
the date of this First Supplemental Indenture, between the Company and The Bank
of New York, as Book-Entry Depositary.
"DTC" means the Depositary Trust Company or its successors.
"Global Senior Note" means a Rule 144A Global Security or a
Regulations S Global Security, in global bearer form substantially in the form
set forth in Exhibit A, with respect to the 6.853% Senior Notes Due 2004, or
Exhibit B, with respect to the 6.995% Senior Notes Due 2007, to this First
Supplemental Indenture.
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ARTICLE II.
Terms and Issuance of the Senior Notes
Section 201. Issue of Senior Notes. Two series of Securities,
which shall be designated the "6.853% Senior Notes Due 2004" and the "6.995%
Senior Notes Due 2007," respectively (collectively, the "Senior Notes"), shall
be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants of
the Original Indenture and this First Supplemental Indenture (including the
forms of Senior Notes set forth in Exhibits A and B, as applicable). The
aggregate principal amount of the 6.853% Senior Notes Due 2004 and the aggregate
principal amount of 6.995% Senior Notes Due 2007 which may be authenticated and
delivered under the First Supplemental Indenture shall not exceed $125,000,000
and $237,000,000, respectively.
Section 202. Form of Senior Notes; Incorporation of Terms. The
form of the Senior Notes shall be substantially in the forms of Exhibits A and B
attached hereto, as applicable, the respective terms of which are herein
incorporated by reference and which are part of this First Supplemental
Indenture.
Section 203. Limitation on Liens. The covenant provided by
Section 1004 of the Original Indenture shall be applicable to the Senior Notes.
Section 204. Limitation on Distributions. The covenant
provided by Section 1005 of the Original indenture shall be applicable to the
Senior Notes.
Section 205. Additional Amounts. The terms provided by Section
1009 of the Original Indenture shall be applicable to the Senior Notes.
Section 206. Place of Payment. The Place of Payment in respect
of the Senior Notes will be (i) in The City of New York, initially at the
Corporate Trust Office of The Bank of New York (which as of the date hereof is
located at 101 Barclay Street, Floor 21 West, New York, NY 10286, Attention:
Corporate Trust Administration and (ii) for so long as the Senior Notes are
listed on the Luxembourg Stock Exchange, in Luxembourg, initially at the
corporate trust office of Banque Internationale a Luxembourg S.A. (which as of
the date hereof is located at 69 route d'Esch, L-1470 Luxembourg).
Section 207. Issuance of Global Senior Notes. The 6.853%
Senior Notes Due 2004 shall be issued as one or more Global Senior Notes in
bearer form and the 6.995% Senior Notes Due 2007 shall be issued as one or more
Global Senior Notes in bearer form (each a "Global Senior Note" and collectively
the "Global Senior Notes") and delivered by the Trustee to the Book-Entry
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Depositary, as the Holder thereof, or a nominee or custodian therefor, to be
held by the Book-Entry Depositary pursuant to the Deposit Agreement.
Section 208. Exchange of the Global Senior Notes. Each of the
Global Senior Notes shall be exchangeable for Definitive Registered Senior Notes
only as provided in Section 309(b)(ii) of the Original Indenture.
Section 209. Regular Record Date for the Senior Notes. The
Regular Record Date for the Senior Notes shall be 15 calendar days immediately
prior to each Interest Payment Date.
Section 210. Authorized Denominations. Beneficial interests in
Book-Entry Interests in Global Senior Notes, as well as Definitive Registered
Senior Notes, may be held only in denominations of $10,000 and integral
multiples of $1,000 in excess thereof.
ARTICLE III.
Book-Entry Depositary
Section 301. Book-Entry Depositary. The Bank of New York, a
New York banking corporation, and its successors are hereby appointed Book-Entry
Depositary with respect to the Senior Notes.
ARTICLE IV.
Section 401. Execution as Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
Section 402. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
Section 403. Successors and Assigns. All covenants and
agreements in this First Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 404. Separability Clause. In case any provision in
this First Supplemental Indenture or in the Senior Notes 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.
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Section 405. Benefits of First Supplemental Indenture. Noting
in this First Supplemental Indenture or in the Senior Notes, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this First Supplemental Indenture.
Section 406. Execution and Counterparts. This First
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereof have caused this First
Supplemental Indenture to be duly executed by their respective officers or
directors duly authorized thereto, all as of the day and year first above
written.
CE ELECTRIC UK FUNDING COMPANY
By: /s/Steven A. McArthur
---------------------
Name: Steven A. McArthur
Title: Director
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent, Security
Exchange Agent/Registrar and Transfer Agent
By: /s/ Thomas E. Tabor
---------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
By: /s/ Thomas E. Tabor
---------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
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STATE OF NEW YORK )
) :SS
COUNTY OF NEW YORK )
On this 12th day of December, 1997, before me personally came
Steven A. McArthur to me known, who, being by me duly sworn, did depose and say
that he is a Director and an authorized agent of CE Electric UK Funding Company,
one of the companies described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of CE
Electric UK Funding Company.
/s/ Ronnell Wilson
-------------------------
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STATE OF NEW YORK )
) :SS
COUNTY OF NEW YORK )
On this ___ day of December, 1997, before me personally came
Thomas E. Tabor to me known, who, being by me duly sworn, did depose and say
that he is an authorized agent of The Bank of New York, one of the companies
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the Board of Directors of said corporation.
----------------------------------
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Exhibit A.1
[FORM OF FACE OF RULE 144A GLOBAL SENIOR NOTE DUE 2004]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A
NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY
DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE
BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE
BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY
DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES
AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE
144A UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL
REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
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THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATIONS) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
No. 1 $____________ CUSIP No. 125148 AA 4
ISIN No. US125148 AA 48
Common Code: 8289018
CE ELECTRIC UK FUNDING COMPANY, an unlimited company
incorporated under the laws of England and Wales (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the bearer upon
surrender hereof the Initial Principal Amount specified on Schedule A hereto
(such Initial Principal Amount, as it may from time to time be adjusted by
endorsement on Schedule A hereto, is hereinafter referred to as the "Principal
Amount") on December 30, 2004, and to pay interest thereon from December 15,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 30 and December 30 in each
year, commencing June 30, 1998 at the rate of 6.853% per annum, until the
Principal Amount hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the bearer on such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the bearer on such Interest Payment Date and
may be paid to the bearer at the time of payment of such Defaulted Interest, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security shall be payable only through a Paying Agent located outside
the United States and the United Kingdom in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts; provided, that such Paying Agent shall be permitted to
make use of a US-based bank account for such purpose. Such payment shall be made
by wire transfer of immediately available funds to a US Dollar account
maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of
discount and premium, if any) in respect of this Security shall be made free and
clear of, and without withholding or deduction for or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within the United Kingdom
or by or within any political subdivision thereof or any authority therein or
thereof having power to tax ("United Kingdom Taxes"), unless such withholding or
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deduction is required by law. In the event of any such withholding or deduction
the Company shall pay to the relevant Holders such additional amounts
("Additional Amounts") as will result in the payment to such Holders of the
amount that would otherwise have been receivable by such Holders in the absence
of such withholding or deduction, except that no such Additional Amounts shall
be payable:
(a) to, or to a Person on behalf of, a Holder who is liable
for such United Kingdom Taxes in respect of this Security by reason of
such Holder (or a fiduciary, settlor, beneficiary, member or
shareholder or possessor of a power over such Holder, if such Holder is
an estate, trust, partnership or corporation) having some connection
with the United Kingdom (including but not limited to being a citizen
or resident or national or domiciliary of, or carrying on a trade or
business or maintaining a permanent establishment in, or being
physically present in, the United Kingdom) other than the mere holding
of this Security or the receipt of principal and interest in respect
thereof;
(b) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) for payment more than 30
days after the Relevant Date except to the extent that the Holder would
have been entitled to such Additional Amounts on presenting this
Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a
declaration of non-residence or similar claim for exemption to the
relevant tax authority or who fails to comply with any other
certification, filing, identification, information or other reporting
requirements if such is a precondition to exemption from, or the
reduction in the rate of, deduction or withholding of United Kingdom
Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal
property taxes or any similar taxes, duties, assessments or other
governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of
any definitive Registered Security issued pursuant to an Optional
Definitive Security Request.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, he would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (f) above. If the
Company shall determine that Additional Amounts will not be payable because of
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the immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in
respect of this Security shall be deemed also to refer to any Additional Amounts
which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts ) evidencing payment of United
Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to
the Holder of this Security upon request.
So long as the Securities of this series are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices to Holders of Securities of this series will be published in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
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This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: _______________________________
Authorized Signatory
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[FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2004]
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of December 15, 1997 (herein called
the "Original Indenture"), among the Company and The Bank of New York, as
trustee, principal paying agent, security exchange agent/registrar and transfer
agent (herein called the "Trustee," which term includes any successor trustee
under the Original Indenture), and Banque Internationale a Luxembourg S.A., as
paying agent and transfer agent (herein called the "Paying Agent and Transfer
Agent," which term includes any successor paying and transfer agent under the
Original Indenture), as supplemented by the First Supplemental Indenture, dated
as of December 15, 1997 (together with the Original Indenture, the "Indenture")
among the Company, the Trustee and the Paying Agent and Transfer Agent, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. Terms defined in the Indenture which are not defined herein are used
with the meanings assigned to them in the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount to
$125,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a Redemption Price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities of this series
being redeemed discounted to the Redemption Date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at a discount rate equal to
the Treasury Yield plus 15 basis points, plus, for (i) or (ii) above, whichever
is applicable, accrued interest on the Securities of this series to the
Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual 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 Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
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"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 in New York City 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 US Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent
investment banking institution of international standing appointed by the
Company.
"Reference Treasury Dealer" means a primary US Government
securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the
Indenture not less than 30 days nor more than 60 days prior to the Redemption
Date.
If fewer than all the Securities of this series are to be
redeemed, selection of Securities of this series for redemption will be made by
the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption
Price, from and after the Redemption Date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the
Trustee will reduce the Principal Amount hereof by endorsement on Schedule A
hereto such that the Principal Amount shown on Schedule A after such endorsement
will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in
whole but not in part upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture to the Holders of Securities of this series at a
price equal to the outstanding principal amount thereof together with Additional
A-8
Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date
if: (a) the Company has or will become obliged to pay Additional Amounts as a
result of either (x) any change in, or amendment to, the laws or regulations of
the United Kingdom or any political subdivision or any authority or agency
thereof or therein having power to tax or levy duties, or any change in the
application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after December 5, 1997, or (y) the issuance of
definitive Registered Securities at any time because (i) of an Optional
Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry
Depositary that it is unwilling or unable to continue to hold the Book-Entry
Interests, or DTC at any time ceases to be a "clearing agency" registered as
such under the Exchange Act, and, in either case, a successor is not appointed
by the Company within 120 days; (iii) while this Global Security is subject to
the transfer restrictions set forth in the legend hereon, the Book-Entry
Interests cease to be eligible for DTC services because the Securities of such
series are neither rated in one of the top four categories by a nationally
recognized statistical rating organization nor included within a Self-Regulatory
Organization system approved by the Commission for the reporting of quotation
and trade information of securities eligible for transfer pursuant to Rule 144A,
such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the
Company that it is unwilling or unable to continue as Book-Entry Depositary with
respect to this Security, and no successor is appointed by the Company within
120 days; and (b) such obligation cannot be avoided by the Company taking
reasonable measures available to it; provided that (i) no notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts were a payment in
respect of the Securities then due; and (ii) prior to the publication of any
such notice or redemption, the Company shall deliver to the Trustee both an
opinion of independent legal counsel of recognized standing addressed to the
Company stating that the Company is entitled to effect such redemption, and an
Officers' Certificate in the form specified in the Indenture stating that the
obligation to pay Additional Amounts referred to in (a) above cannot be avoided
by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. At any time after such declaration of acceleration
with respect to Securities of this series has been made, but before a judgment
or decree for payment of money has been obtained by the Trustee as provided in
the Indenture, if all Events of Default with respect to Securities of this
series have been cured or waived (other than the non-payment of principal of the
Securities of this series which has become due solely by reason of such
declaration of acceleration) then and in every such case, the Holders of a
majority in aggregate principal amount of the Outstanding securities of such
series may, by written notice to the Company and to the Trustee, rescind and
A-9
annul such declaration and its consequences on behalf of all of the Holders, but
no such recision or annulment shall extend to or affect any subsequent default
or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and rights
of the Holders of the Securities of any series at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor on in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
A-10
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company shall have any liability for any obligation of the
Company under the Securities of this series or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Securities of this series by accepting a Security of this
series waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. This Security will also bear an ISIN number
A-11
and a Common Code. No representation is made as to the accuracy of such numbers
as printed on the Securities of this series and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws thereof.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-12
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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A-13
Exhibit A.2
[FORM OF FACE OF REGULATION S GLOBAL SENIOR NOTE DUE 2004]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A
NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY
DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE
BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE
BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY
DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES
AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN ISSUED IN RELIANCE ON REGULATION S
UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN
ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
A-14
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATIONS) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-15
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
No. 2 $____________ CUSIP No. G1989D AA 5
ISIN No. USG1989 AA 57
Common Code: 8289018
CE ELECTRIC UK FUNDING COMPANY, an unlimited company
incorporated under the laws of England and Wales (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the bearer upon
surrender hereof the Initial Principal Amount specified on Schedule A hereto
(such Initial Principal Amount, as it may from time to time be adjusted by
endorsement on Schedule A hereto, is hereinafter referred to as the "Principal
Amount") on December 30, 2004, and to pay interest thereon from December 15,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 30 and December 30 in each
year, commencing June 30, 1998 at the rate of 6.853% per annum, until the
Principal Amount hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the bearer on such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the bearer on such Interest Payment Date and
may be paid to the bearer at the time of payment of such Defaulted Interest, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security shall be payable only through a Paying Agent located outside
the United States and the United Kingdom in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts; provided, that such Paying Agent shall be permitted to
make use of a US-based bank account for such purpose. Such payment shall be made
by wire transfer of immediately available funds to a US Dollar account
maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of
discount and premium, if any) in respect of this Security shall be made free and
clear of, and without withholding or deduction for or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within the United Kingdom
or by or within any political subdivision thereof or any authority therein or
thereof having power to tax ("United Kingdom Taxes"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction
the Company shall pay to the relevant Holders such additional amounts
("Additional Amounts") as will result in the payment to such Holders of the
A-16
amount that would otherwise have been receivable by such Holders in the absence
of such withholding or deduction, except that no such Additional Amounts shall
be payable:
(a) to, or to a Person on behalf of, a Holder who is liable
for such United Kingdom Taxes in respect of this Security by reason of
such Holder (or a fiduciary, settlor, beneficiary, member or
shareholder or possessor of a power over such Holder, if such Holder is
an estate, trust, partnership or corporation) having some connection
with the United Kingdom (including but not limited to being a citizen
or resident or national or domiciliary of, or carrying on a trade or
business or maintaining a permanent establishment in, or being
physically present in, the United Kingdom) other than the mere holding
of this Security or the receipt of principal and interest in respect
thereof;
(b) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) for payment more than 30
days after the Relevant Date except to the extent that the Holder would
have been entitled to such Additional Amounts on presenting this
Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a
declaration of non-residence or similar claim for exemption to the
relevant tax authority or who fails to comply with any other
certification, filing, identification, information or other reporting
requirements if such is a precondition to exemption from, or the
reduction in the rate of, deduction or withholding of United Kingdom
Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal
property taxes or any similar taxes, duties, assessments or other
governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of
any definitive Registered Security issued pursuant to an Optional
Definitive Security Request.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, he would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (f) above. If the
Company shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in
respect of this Security shall be deemed also to refer to any Additional Amounts
which may be payable as set forth in the Indenture or in this Security.
A-17
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts) evidencing payment of United
Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to
the Holder of this Security upon request.
So long as the Securities of this series are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices to Holders of Securities of this series will be published in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
A-18
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
A-19
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________
Authorized Signatory
A-20
[FORM OF REVERSE OF REGULATION S GLOBAL SENIOR NOTE DUE 2004]
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of December 15, 1997 (herein called
the "Original Indenture"), among the Company and The Bank of New York, as
trustee, principal paying agent, security exchange agent/registrar and transfer
agent (herein called the "Trustee," which term includes any successor trustee
under the Original Indenture), and Banque Internationale a Luxembourg S.A., as
paying agent and transfer agent (herein called the "Paying Agent and Transfer
Agent," which term includes any successor paying and transfer agent under the
Original Indenture), as supplemented by the First Supplemental Indenture, dated
as of December 15, 1997 (together with the Original Indenture, the "Indenture")
among the Company, the Trustee and the Paying Agent and Transfer Agent, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. Terms defined in the Indenture which are not defined herein are used
with the meanings assigned to them in the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount to
$125,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a Redemption Price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities of this series
being redeemed discounted to the Redemption Date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at a discount rate equal to
the Treasury Yield plus 15 basis points, plus, for (i) or (ii) above, whichever
is applicable, accrued interest on the Securities of this series to the
Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual 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 Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"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)
A-21
on the third Business Day in New York City 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 US Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent
investment banking institution of international standing appointed by the
Company.
"Reference Treasury Dealer" means a primary US Government
securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the
Indenture not less than 30 days nor more than 60 days prior to the Redemption
Date.
If fewer than all the Securities of this series are to be
redeemed, selection of Securities of this series for redemption will be made by
the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption
Price, from and after the Redemption Date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the
Trustee will reduce the Principal Amount hereof by endorsement on Schedule A
hereto such that the Principal Amount shown on Schedule A after such endorsement
will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in
whole but not in part upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture to the Holders of Securities of this series at a
price equal to the outstanding principal amount thereof together with Additional
Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date
if: (a) the Company has or will become obliged to pay Additional Amounts as a
result of either (x) any change in, or amendment to, the laws or regulations of
the United Kingdom or any political subdivision or any authority or agency
thereof or therein having power to tax or levy duties, or any change in the
application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after December 5, 1997, or (y) the issuance of
A-22
definitive Registered Securities at any time because (i) of an Optional
Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry
Depositary that it is unwilling or unable to continue to hold the Book-Entry
Interests, or DTC at any time ceases to be a "clearing agency" registered as
such under the Exchange Act, and, in either case, a successor is not appointed
by the Company within 120 days; (iii) while this Global Security is subject to
the transfer restrictions set forth in the legend hereon, the Book-Entry
Interests cease to be eligible for DTC services because the Securities of such
series are neither rated in one of the top four categories by a nationally
recognized statistical rating organization nor included within a Self-Regulatory
Organization system approved by the Commission for the reporting of quotation
and trade information of securities eligible for transfer pursuant to Rule 144A,
such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the
Company that it is unwilling or unable to continue as Book-Entry Depositary with
respect to this Security, and no successor is appointed by the Company within
120 days; and (b) such obligation cannot be avoided by the Company taking
reasonable measures available to it; provided that (i) no notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts were a payment in
respect of the Securities then due; and (ii) prior to the publication of any
such notice or redemption, the Company shall deliver to the Trustee both an
opinion of independent legal counsel of recognized standing addressed to the
Company stating that the Company is entitled to effect such redemption, and an
Officers' Certificate in the form specified in the Indenture stating that the
obligation to pay Additional Amounts referred to in (a) above cannot be avoided
by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. At any time after such declaration of acceleration
with respect to Securities of this series has been made, but before a judgment
or decree for payment of money has been obtained by the Trustee as provided in
the Indenture, if all Events of Default with respect to Securities of this
series have been cured or waived (other than the non-payment of principal of the
Securities of this series which has become due solely by reason of such
declaration of acceleration) then and in every such case, the Holders of a
majority in aggregate principal amount of the Outstanding securities of such
series may, by written notice to the Company and to the Trustee, rescind and
annul such declaration and its consequences on behalf of all of the Holders, but
no such recision or annulment shall extend to or affect any subsequent default
or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and rights
of the Holders of the Securities of any series at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
A-23
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor on in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
A-24
The bearer of this Global Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company shall have any liability for any obligation of the
Company under the Securities of this series or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Securities of this series by accepting a Security of this
series waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. This Security will also bear an ISIN number
and a Common Code. No representation is made as to the accuracy of such numbers
as printed on the Securities of this series and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws thereof.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-25
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $______________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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A-26
Exhibit B.1
[FORM OF FACE OF RULE 144A GLOBAL SENIOR NOTE DUE 2007]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A
NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY
DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE
BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE
BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY
DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES
AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE
144A UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL
REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
B-1
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
B-2
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
No. 1 $____________ CUSIP No. 125148 AB 2
ISIN No. US125148 AB 21
Common Code: 8289042
CE ELECTRIC UK FUNDING COMPANY, an unlimited company
incorporated under the laws of England and Wales (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the bearer upon
surrender hereof the Initial Principal Amount specified on Schedule A hereto
(such Initial Principal Amount, as it may from time to time be adjusted by
endorsement on Schedule A hereto, is hereinafter referred to as the "Principal
Amount") on December 30, 2007, and to pay interest thereon from December 15,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 30 and December 30 in each
year, commencing June 30, 1998 at the rate of 6.995% per annum, until the
Principal Amount hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the bearer on such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the bearer on such Interest Payment Date and
may be paid to the bearer at the time of payment of such Defaulted Interest, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security shall be payable only through a Paying Agent located outside
the United States and the United Kingdom in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts; provided, that such Paying Agent shall be permitted to
make use of a US-based bank account for such purpose. Such payment shall be made
by wire transfer of immediately available funds to a US Dollar account
maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of
discount and premium, if any) in respect of this Security shall be made free and
clear of, and without withholding or deduction for or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within the United Kingdom
or by or within any political subdivision thereof or any authority therein or
thereof having power to tax ("United Kingdom Taxes"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction
the Company shall pay to the relevant Holders such additional amounts
("Additional Amounts") as will result in the payment to such Holders of the
amount that would otherwise have been receivable by such Holders in the absence
B-3
of such withholding or deduction, except that no such Additional Amounts shall
be payable:
(a) to, or to a Person on behalf of, a Holder who is liable
for such United Kingdom Taxes in respect of this Security by reason of
such Holder (or a fiduciary, settlor, beneficiary, member or
shareholder or possessor of a power over such Holder, if such Holder is
an estate, trust, partnership or corporation) having some connection
with the United Kingdom (including but not limited to being a citizen
or resident or national or domiciliary of, or carrying on a trade or
business or maintaining a permanent establishment in, or being
physically present in, the United Kingdom) other than the mere holding
of this Security or the receipt of principal and interest in respect
thereof;
(b) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) for payment more than 30
days after the Relevant Date except to the extent that the Holder would
have been entitled to such Additional Amounts on presenting this
Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a
declaration of non-residence or similar claim for exemption to the
relevant tax authority or who fails to comply with any other
certification, filing, identification, information or other reporting
requirements if such is a precondition to exemption from, or the
reduction in the rate of, deduction or withholding of United Kingdom
Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal
property taxes or any similar taxes, duties, assessments or other
governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of
any definitive Registered Security issued pursuant to an Optional
Definitive Security Request.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, he would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (f) above. If the
Company shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in
respect of this Security shall be deemed also to refer to any Additional Amounts
which may be payable as set forth in the Indenture or in this Security.
B-4
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts) evidencing payment of United
Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to
the Holder of this Security upon request.
So long as the Securities of this series are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices to Holders of Securities of this series will be published in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
B-5
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
B-6
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________
Authorized Signatory
B-7
[FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2007]
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of December 15, 1997 (herein called
the "Original Indenture"), among the Company and The Bank of New York, as
trustee, principal paying agent, security exchange agent/registrar and transfer
agent (herein called the "Trustee," which term includes any successor trustee
under the Original Indenture), and Banque Internationale a Luxembourg S.A., as
paying agent and transfer agent (herein called the "Paying Agent and Transfer
Agent," which term includes any successor paying and transfer agent under the
Original Indenture), as supplemented by the First Supplemental Indenture, dated
as of December 15, 1997 (together with the Original Indenture, the "Indenture")
among the Company, the Trustee and the Paying Agent and Transfer Agent, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. Terms defined in the Indenture which are not defined herein are used
with the meanings assigned to them in the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount to
$237,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a Redemption Price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities of this series
being redeemed discounted to the Redemption Date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at a discount rate equal to
the Treasury Yield plus 20 basis points, plus, for (i) or (ii) above, whichever
is applicable, accrued interest on the Securities of this series to the
Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual 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 Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"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)
B-8
on the third Business Day in New York City 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 US Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent
investment banking institution of international standing appointed by the
Company.
"Reference Treasury Dealer" means a primary US Government
securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the
Indenture not less than 30 days nor more than 60 days prior to the Redemption
Date.
If fewer than all the Securities of this series are to be
redeemed, selection of Securities of this series for redemption will be made by
the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption
Price, from and after the Redemption Date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the
Trustee will reduce the Principal Amount hereof by endorsement on Schedule A
hereto such that the Principal Amount shown on Schedule A after such endorsement
will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in
whole but not in part upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture to the Holders of Securities of this series at a
price equal to the outstanding principal amount thereof together with Additional
Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date
if: (a) the Company has or will become obliged to pay Additional Amounts as a
result of either (x) any change in, or amendment to, the laws or regulations of
the United Kingdom or any political subdivision or any authority or agency
thereof or therein having power to tax or levy duties, or any change in the
application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after December 5, 1997, or (y) the issuance of
B-9
definitive Registered Securities at any time because (i) of an Optional
Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry
Depositary that it is unwilling or unable to continue to hold the Book-Entry
Interests, or DTC at any time ceases to be a "clearing agency" registered as
such under the Exchange Act, and, in either case, a successor is not appointed
by the Company within 120 days; (iii) while this Global Security is subject to
the transfer restrictions set forth in the legend hereon, the Book-Entry
Interests cease to be eligible for DTC services because the Securities of such
series are neither rated in one of the top four categories by a nationally
recognized statistical rating organization nor included within a Self-Regulatory
Organization system approved by the Commission for the reporting of quotation
and trade information of securities eligible for transfer pursuant to Rule 144A,
such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the
Company that it is unwilling or unable to continue as Book-Entry Depositary with
respect to this Security, and no successor is appointed by the Company within
120 days; and (b) such obligation cannot be avoided by the Company taking
reasonable measures available to it; provided that (i) no notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts were a payment in
respect of the Securities then due; and (ii) prior to the publication of any
such notice of redemption the Company shall deliver to the Trustee both an
opinion of independent legal counsel of recognized standing addressed to the
Company stating that the Company is entitled to effect such redemption, and an
Officers' Certificate in the form specified in the Indenture stating that the
obligation to pay Additional Amounts referred to in (a) above cannot be avoided
by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. At any time after such declaration of acceleration
with respect to Securities of this series has been made, but before a judgment
or decree for payment of money has been obtained by the Trustee as provided in
the Indenture, if all Events of Default with respect to Securities of this
series have been cured or waived (other than the non-payment of principal of the
Securities of this series which has become due solely by reason of such
declaration of acceleration) then and in every such case, the Holders of a
majority in aggregate principal amount of the Outstanding securities of such
series may, by written notice to the Company and to the Trustee, rescind and
annul such declaration and its consequences on behalf of all of the Holders, but
no such recision or annulment shall extend to or affect any subsequent default
or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and rights
of the Holders of the Securities of any series at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
B-10
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor on in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
B-11
of Securities of this series and of like tenor of a different authorized
denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company shall have any liability for any obligation of the
Company under the Securities of this series or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Securities of this series by accepting a Security of this
series waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. This Security will also bear an ISIN number
and a Common Code. No representation is made as to the accuracy of such numbers
as printed on the Securities of this series and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws thereof.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
B-12
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_____________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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B-13
Exhibit B.2
[FORM OF FACE OF REGULATION S GLOBAL SENIOR NOTE DUE 2007]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR
A NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-
ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF
THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE
BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY
DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES
AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN ISSUED IN RELIANCE ON REGULATION S
UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN
ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO OR FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS
SECURITY AND ANY OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE
DATE OF THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
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THEREOF WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF)
THROUGH THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
B-15
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
No. 2 $____________ CUSIP No. G1989D AB 3
ISIN No. USG1989D AB 31
Common Code: 8289042
CE ELECTRIC UK FUNDING COMPANY, an unlimited company
incorporated under the laws of England and Wales (herein
called the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to the bearer upon surrender hereof the Initial Principal Amount specified on
Schedule A hereto (such Initial Principal Amount, as it may from time to time be
adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the
"Principal Amount") on December 30, 2007, and to pay interest thereon from
December 15, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on June 30 and
December 30 in each year, commencing June 30, 1998 at the rate of 6.995% per
annum, until the Principal Amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the bearer
on such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the bearer on such Interest
Payment Date and may be paid to the bearer at the time of payment of such
Defaulted Interest, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security shall be payable only through a Paying Agent located
outside the United States and the United Kingdom in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts; provided, that such Paying Agent shall be
permitted to make use of a US-based bank account for such purpose. Such payment
shall be made by wire transfer of immediately available funds to a US Dollar
account maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments
of discount and premium, if any) in respect of this Security shall be made free
and clear of, and without withholding or deduction for or on account of, any
present or future taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by or within the United
Kingdom or by or within any political subdivision thereof or any authority
therein or thereof having power to tax ("United Kingdom Taxes"), unless such
withholding or deduction is required by law. In the event of any such
withholding or deduction the Company shall pay to the relevant Holders such
B-16
additional amounts ("Additional Amounts") as will result in the payment to such
Holders of the amount that would otherwise have been receivable by such Holders
in the absence of such withholding or deduction, except that no such Additional
Amounts shall be payable:
(a) to, or to a Person on behalf of,
a Holder who is liable for such United Kingdom
Taxes in respect of this Security by reason of such Holder
(or a fiduciary, settlor, beneficiary, member or
shareholder or possessor of a power over such Holder, if
such Holder is an estate, trust, partnership or
corporation) having some connection with the United
Kingdom (including but not limited to being a citizen or
resident or national or domiciliary of, or carrying on a
trade or business or maintaining a permanent establishment
in, or being physically present in, the United Kingdom)
other than the mere holding of this Security or the
receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of,
a Holder who presents this Security (where
presentation is required) for payment more than 30 days
after the Relevant Date except to the extent that the
Holder would have been entitled to such Additional Amounts
on presenting this Security for payment on the last day of
such period of 30 days;
(c) to, or to a Person on behalf of,
a Holder who presents this Security (where
presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of,
a Holder who would not be liable or subject to the
withholding or deduction by making a declaration of
non-residence or similar claim for exemption to the
relevant tax authority or who fails to comply with any
other certification, filing, identification, information
or other reporting requirements if such is a precondition
to exemption from, or the reduction in the rate of,
deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift,
sales, transfer or personal property taxes or any similar
taxes, duties, assessments or other governmental charges;
or
(f) to, or to a Person on behalf of,
a Holder in respect of any definitive Registered Security
issued pursuant to an Optional Definitive Security
Request.
Such Additional Amounts will also not be payable where,
had the beneficial owner of the Security (or any interest therein) been the
Holder of the Security, he would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (f) above. If the
B-17
Company shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Company will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in
respect of this Security shall be deemed also to refer to any Additional Amounts
which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official
receipts (or a certified copy of the official receipts) evidencing payment of
United Kingdom Taxes. Copies of such receipts shall be made available by the
Trustee to the Holder of this Security upon request.
So long as the Securities of this series are listed on the
Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, notices to Holders of Securities of this
series will be published in a leading newspaper having general circulation in
Luxembourg (which is expected to be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL
FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
B-18
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed by an officer or director duly
authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
B-19
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________
Authorized Signatory
B-20
[FORM OF REVERSE OF REGULATION S GLOBAL SENIOR NOTE DUE 2007]
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of December 15, 1997 (herein called
the "Original Indenture"), among the Company and The Bank of New York, as
trustee, principal paying agent, security exchange agent/registrar and transfer
agent (herein called the "Trustee," which term includes any successor trustee
under the Original Indenture), and Banque Internationale a Luxembourg S.A., as
paying agent and transfer agent (herein called the "Paying Agent and Transfer
Agent," which term includes any successor paying and transfer agent under the
Original Indenture), as supplemented by the First Supplemental Indenture, dated
as of December 15, 1997 (together with the Original Indenture, the "Indenture")
among the Company, the Trustee and the Paying Agent and Transfer Agent, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. Terms defined in the Indenture which are not defined herein are used
with the meanings assigned to them in the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount to
$237,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a Redemption Price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities of this series
being redeemed discounted to the Redemption Date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at a discount rate equal to
the Treasury Yield plus 20 basis points, plus, for (i) or (ii) above, whichever
is applicable, accrued interest on the Securities of this series to the
Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual 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 Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"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)
B-21
on the third Business Day in New York City 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 US Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent
investment banking institution of international standing appointed by the
Company.
"Reference Treasury Dealer" means a primary US Government
securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the
Indenture not less than 30 days nor more than 60 days prior to the Redemption
Date.
If fewer than all the Securities of this series are to be
redeemed, selection of Securities of this series for redemption will be made by
the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption
Price, from and after the Redemption Date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the
Trustee will reduce the Principal Amount hereof by endorsement on Schedule A
hereto such that the Principal Amount shown on Schedule A after such endorsement
will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in
whole but not in part upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture to the Holders of Securities of this series at a
price equal to the outstanding principal amount thereof together with Additional
Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date
if: (a) the Company has or will become obliged to pay Additional Amounts as a
result of either (x) any change in, or amendment to, the laws or regulations of
the United Kingdom or any political subdivision or any authority or agency
thereof or therein having power to tax or levy duties, or any change in the
application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after December 5, 1997, or (y) the issuance of
B-22
definitive Registered Securities at any time because (i) of an Optional
Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry
Depositary that it is unwilling or unable to continue to hold the Book-Entry
Interests, or DTC at any time ceases to be a "clearing agency" registered as
such under the Exchange Act, and, in either case, a successor is not appointed
by the Company within 120 days; (iii) while this Global Security is subject to
the transfer restrictions set forth in the legend hereon, the Book-Entry
Interests cease to be eligible for DTC services because the Securities of such
series are neither rated in one of the top four categories by a nationally
recognized statistical rating organization nor included within a Self-Regulatory
Organization system approved by the Commission for the reporting of quotation
and trade information of securities eligible for transfer pursuant to Rule 144A,
such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the
Company that it is unwilling or unable to continue as Book-Entry Depositary with
respect to this Security, and no successor is appointed by the Company within
120 days; and (b) such obligation cannot be avoided by the Company taking
reasonable measures available to it; provided that (i) no notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to pay such Additional Amounts were a payment in
respect of the Securities then due; and (ii) prior to the publication of any
such notice of redemption the Company shall deliver to the Trustee both an
opinion of independent legal counsel of recognized standing addressed to the
Company stating that the Company is entitled to effect such redemption, and an
Officers' Certificate in the form specified in the Indenture stating that the
obligation to pay Additional Amounts referred to in (a) above cannot be avoided
by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. At any time after such declaration of acceleration
with respect to Securities of this series has been made, but before a judgment
or decree for payment of money has been obtained by the Trustee as provided in
the Indenture, if all Events of Default with respect to Securities of this
series have been cured or waived (other than the non-payment of principal of the
Securities of this series which has become due solely by reason of such
declaration of acceleration) then and in every such case, the Holders of a
majority in aggregate principal amount of the Outstanding securities of such
series may, by written notice to the Company and to the Trustee, rescind and
annul such declaration and its consequences on behalf of all of the Holders, but
no such recision or annulment shall extend to or affect any subsequent default
or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and rights
of the Holders of the Securities of any series at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
B-23
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor on in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth,
B-24
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company shall have any liability for any obligation of the
Company under the Securities of this series or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Securities of this series by accepting a Security of this
series waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. This Security will also bear an ISIN number
and a Common Code. No representation is made as to the accuracy of such numbers
as printed on the Securities of this series and reliance may be placed only on
the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws thereof.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
B-25
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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