EXHIBIT 4.2
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FLORIDA PROGRESS FUNDING CORPORATION,
FLORIDA PROGRESS CORPORATION, AS GUARANTOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
SUPPLEMENTAL INDENTURE NO. 1
Dated as of 1, 1999
$
% Junior Subordinated Deferrable Interest Notes,
Series A
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FLORIDA PROGRESS FUNDING CORPORATION
$
% Junior Subordinated Deferrable Interest Notes,
Series A
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1, dated as of 1, 1999 among
Florida Progress Funding Corporation, a Delaware corporation (the "Company"),
Florida Progress Corporation, a Florida Corporation, as Guarantor (the
"Guarantor") and The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
RECITALS
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The Company, the Guarantor and the Trustee have heretofore executed a
Junior Subordinated Indenture, dated as of 1, 1999 (the
"Indenture"), providing for the issuance from time to time of series of the
Company's Debt Securities and the Guarantor's Guarantees.
Section 3.1 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 9.1(3) of the Indenture provides for the Company, the Guarantor and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
2.1 or 3.1 of the Indenture.
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
Section 1.1. This Supplemental Indenture No. 1 constitutes an integral
part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 1:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture or in the Amended and Restated Trust
Agreement, dated as of 1, 1999, among the Company, as
Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Administrative Trustee named
therein, as the case may be;
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(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 1; and
(3) The terms "herein", "hereof', "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 1.
ARTICLE 2
THE SERIES OF SECURITIES
Section 2.1. Title of the Debt Securities. There shall be a series of
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Debt Securities designated the " % Junior Subordinated Deferrable Interest
Notes, Series A" (the "Debt Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of Debt
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Securities. The aggregate principal amount of the Debt Securities shall be
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limited to $ . Each Debt Security shall be dated the date of
its authentication.
Section 2.3. Principal Payment Date. The principal amount of the Debt
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Securities Outstanding (together with any accrued and unpaid interest (including
any Additional Interest) thereon) shall be payable in a single installment on
, 2039.
Section 2.4. Interest and Interest Rates. The rate of interest on each
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Debt Security shall be % per annum, accruing from , 1999
and, subject to Section 2.5, interest shall be payable, quarterly in arrears, on
March 31, June 30, September 30 and December 31 of each year (each such date, an
"Interest Payment Date"), commencing June 30, 1999. The rate of any Additional
Interest that shall accrue on each Debt Security shall be at the same rate per
annum. The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. For any period of less than a
full month, interest payable shall reflect interest on the Debt Securities
computed on the basis of the actual number of elapsed days based on a month of
30 days in a 360-day year. In the event that any date on which interest is
payable on a Debt Security is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date such payment was
originally payable. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Debt Security (or one or more Predecessor Securities) is
registered in the Securities Register at the close of business on the Regular
Record Date for such interest installment, which, if such Security is a Global
Security issued to the Depositary, shall be the close of business on the
Business Day next preceding such Interest Payment Date. The interest so payable
on any Debt Security which is not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name such Debt
Security (or one or more Predecessor Securities) is registered in the Securities
Register at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Debt
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Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Section 2.5. Extension of Interest Payment Period. (a) So long as no
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Event of Default shall have occurred and be continuing, the Company shall have
the right, at any time during the term of the Securities, from time to time, to
defer the payment of interest on the Debt Securities for up to 20 consecutive
quarters with respect to each deferred period (each, an "Extension Period"),
during which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date. No Extension Period shall
end on a date other than an Interest Payment Date. At the end of any such
Extension Period the Company shall pay all interest then accrued and unpaid on
the Debt Securities (together with Additional Interest thereon, if any, at the
annual rate of %, compounded quarterly, to the extent permitted by
applicable law), provided, that no Extension Period shall extend beyond the
Stated Maturity of the principal of the Debt Securities; provided, further, that
during any such Extension Period, neither the Company nor the Guarantor shall
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
or (ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem, any debt security issued by it that ranks pari
passu with or junior in interest to the Securities or make any guarantee
payments with respect to any guaranty by the Company or the Guarantor of the
debt securities of any Subsidiary of the Company or the Guarantor that by their
terms rank pari passu with or junior in interest to the Securities (other than
(a) dividends or distributions in Common Stock, (b) any declaration of a
dividend in connection with the implementation of a Rights Plan, the issuance of
any Common Stock or any class or series of preferred stock of the Company or the
Guarantor under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) purchases of Common Stock related to the issuance
of Common Stock under any of the Company's or the Guarantor's benefit plans for
their respective directors, officers or employees). Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period. Notwithstanding any provision of this Supplemental Indenture No. 1 or
the Indenture to the contrary, no Extension Period shall exceed 20 consecutive
quarters or extend beyond the Maturity Date of the Securities. Upon termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the requirements hereof. No interest shall be
due and payable during an Extension Period, except at the end thereof. The
Company shall give the Holders of the Securities and the Property Trustee, the
Administrative Trustee and the Trustee notice of its election to begin any such
Extension Period at least one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities would have
been payable except for the election to begin such Extension Period or (ii) the
date the Administrative Trustee is required to give notice to any securities
exchange or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date. The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the holders of the outstanding Securities, and
pursuant to Section 8.2 of the Trust Agreement, within five Business Days
following receipt of notice of the Company's election to defer the payment of
interest on the Securities, the Administrative Trustee shall notify the holders
of the Preferred Securities and the Property Trustee of such election.
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Section 2.6. Place of Payment. The Place of Payment where the Securities
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may be presented or surrendered for payment, where the Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and the Indenture
may be served shall be the Corporate Trust Office of the Trustee.
Section 2.7. Redemption. At any time on or after ,
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2004, the Company may, at its option, subject to the terms and conditions of
Article Eleven of the Indenture, redeem the Debt Securities in whole at any time
or in part from time to time, without premium or penalty, at a redemption price
equal to 100% of the principal amount thereof plus the accrued and unpaid
interest, including Additional Interest, if any, to the date fixed for
redemption.
If a Special Event in respect of FPC Capital I shall occur and be
continuing, the Company may, at its option, redeem the Debt Securities within 90
days of the occurrence of such Special Event, in whole but not in part, subject
to the provisions of Article Eleven of the Indenture. The redemption price for
any Debt Security so redeemed shall be equal to 100% of the principal amount
thereof plus accrued and unpaid interest, including Additional Interest, if any,
to the date fixed for redemption.
Section 2.8. Exchange. At any time, the Company may terminate FPC
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Capital I and cause the Debt Securities to be distributed to Holders of the
Trust Securities in liquidation of FPC Capital I.
Section 2.9. Denomination. The Debt Securities shall be in registered
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form without coupons and shall be issuable in denominations of $25 and integral
multiples thereof.
Section 2.10. Currency. Principal and interest and other amounts payable
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on the Securities shall be payable in Dollars.
Section 2.11. Form of Securities. The Securities shall be substantially
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in the form attached as Exhibit A hereto.
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Section 2.12. Securities Registrar and Paying Agent. The Trustee shall
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initially serve as Securities Registrar and Paying Agent.
Section 2.13. Sinking Fund Obligations. The Company has no obligation to
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redeem or purchase any Securities pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.
Section 2.14. Guarantee. A notation of the Guarantee shall be set forth
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on each Security in substantially the form set forth in the Indenture.
ARTICLE 3
MISCELLANEOUS PROVISIONS
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
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Section 3.2. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed, as of the day and year first written above.
FLORIDA PROGRESS FUNDING CORPORATION
By:___________________
Its:
Attest:____________________
Secretary
FLORIDA PROGRESS CORPORATION, as Guarantor
By:____________________
Its:
Attest:____________________
Secretary
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:_____________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF SECURITY]
[IF THE SECURITY IS TO BE A GLOBAL SECURITY - This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company (the "Depository") or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository.]
FLORIDA PROGRESS FUNDING CORPORATION
% Junior Subordinated Deferrable Interest Notes,
Series A
No. ___________ $ CUSIP
FLORIDA PROGRESS FUNDING CORPORATION, a corporation organized and existing
under the laws of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of ___________ Dollars on ,
2039. The Company further promises to pay interest on said principal sum from
June 30, 1999 or from the most recent interest payment date (each such date, an
"Interest Payment Date") on which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year, commencing ,
1999, at the rate of % per annum, until the principal hereof shall have
become due and payable, plus Additional Interest, if any, until the principal
hereof is paid or duly provided for or made available for payment and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of % per annum, compounded quarterly. The amount of
interest payable for any period will be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial
period shall be computed on the basis of the actual number of elapsed days based
on a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other than
(i) a Saturday or Sunday, (ii) a day on which banking institutions in the City
of New York are authorized or required by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee or the
principal office of the Property Trustee under the Trust Agreement hereinafter
referred to for FPC Capital I, is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any
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Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities, as defined
in the Indenture) is registered at the close of business on the Regular Record
Date for such interest installment, which shall be (i) in the case of Securities
represented by one or more Global Securities, the Business Day next preceding
such Interest Payment Date and (ii) in the case of Securities not represented by
one or more Global Securities, the date which is fifteen days next preceding
such Interest Payment Date (whether or not a Business Day). Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed or traded, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture.
So long as no Event of Default under the Indenture shall have occurred and
be continuing, the Company shall have the right at any time during the term of
this Security to defer the payment of interest on such Security, at any time or
from time to time for up to 20 consecutive quarterly interest payment periods
with respect to each deferral period (each an "Extension Period"), during which
Extension Periods the Company shall have the right to make payments of interest
on any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security; provided further, that during any Extension Period, the Company shall
not nor shall the Guarantor referred to herein (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock or (ii) make any payment of principal
of, or interest or premium, if any, on, or repay, repurchase or redeem any debt
security issued by it that ranks pari passu with or junior in interest to this
Security or the Guarantee referred to herein or make any guarantee payments with
respect to any guarantee by the Company or the Guarantor of the debt securities
of any of their respective Subsidiaries if such guarantee ranks pari passu with
or junior in interest to this Security (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any Common Stock or
any class or series of preferred stock of the Company or the Guarantor under any
Rights Plan or the repurchase of any rights distributed pursuant to a Rights
Plan, and (c) purchases of Common Stock related to the issuance of Common Stock
under any of the Company's or the Guarantor's benefit plans for their respective
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period;
provided that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Maturity Date of this Security. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may elect to begin a new Extension
Period, subject to the requirements hereof. No interest shall be due and
payable during an Extension Period except at the end thereof. The Company shall
give the Holder of this Security and the Trustee written notice of its election
to begin any Extension Period at least one Business Day prior to the earlier of
(i) the next succeeding date on which Distributions on the Preferred Securities
would be payable but
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for such deferral or (ii) the date the Administrative Trustee is required to
give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the United
States, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt of the Company, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference 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.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on this Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:_______________________
Name:___________________
Title___________________
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FLORIDA PROGRESS FUNDING CORPORATION
By:____________________________
[President or Vice President]
Attest:
______________________________________
[Secretary or Assistant Secretary]
SWORN TO ME and subscribed in my presence this day of , 1999.
_______________________________
Notary Public
Commission Expires:____________
[NOTARIAL SEAL]
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:____________________________
Authorized Officer
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NOTES GUARANTEE
FOR THE VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of and interest (including Additional
Interest) on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of this Security and the
Indenture.
The obligations of the Guarantor to the Holders of this Security and the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
The Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts
thereof.
Dated:
FLORIDA PROGRESS CORPORATION, as Guarantor
By:__________________________
Its:
SWORN TO ME and subscribed in my presence this day of , 1999.
______________________________
Notary Public
Commission Expires:___________
[NOTARIAL SEAL]
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[FORM OF REVERSE OF SECURITY]
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 the Junior Subordinated Indenture, dated as of
1, 1999, as amended (herein called the "Indenture"), among the Company, the
Guarantor and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), 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 Trustee, the Company, the Guarantor and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $ .
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of 1, 1999 (the "Trust
Agreement"), for FPC Capital I among the Company, as Depositor,
and the Trustee and the other trustees named therein, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
The Company may at any time, at its option, on or after ,
2004, and subject to the terms and conditions of Article XI of the Indenture,
redeem this Security in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to 100% of the principal amount
thereof plus the accrued and unpaid interest, including Additional Interest, if
any, to the Redemption Date.
Upon the occurrence and continuance of a Special Event in respect of FPC
Capital I, the Company may, at its option, at any time within 90 days of the
occurrence of such Special Event, redeem this Security, in whole but not in
part, subject to the provisions of Section 11.7 and the other provisions of
Article XI of the Indenture, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest, including Additional
Interest, if any, to the Redemption Date.
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company, the Guarantor and of the Holders of the
Securities, with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount
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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 or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, in the case of the Securities
of a series issued to an FPC Capital Trust, if upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fail to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company, the
Guarantor and the Trustee; and upon any such declaration the principal amount of
and the accrued interest (including any Additional Interest) on all the
Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.
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 and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. 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.
Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
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The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. 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 such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and the Guarantor and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for United States federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
A-8
