EXHIBIT 4.4
Draft
2/10/98
SAVANNAH ELECTRIC AND POWER COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE.
________ SUPPLEMENTAL INDENTURE
DATED AS OF ________________, ______
$----------
SERIES ____ ________% JUNIOR SUBORDINATED NOTES
DUE _________________, _____
TABLE OF CONTENTS1
PAGE
ARTICLE 1.........................................................2
SECTION 101. Establishment........................................2
SECTION 102. Definitions..........................................2
SECTION 103. Payment of Principal and Interest....................3
SECTION 104. Deferral of Interest Payments........................4
SECTION 105. Denominations........................................5
SECTION 106. Global Securities....................................5
SECTION 107. Transfer.............................................6
SECTION 108. Redemption...........................................6
ARTICLE 2.........................................................7
SECTION 201. Recitals by Company..................................7
SECTION 202. Ratification and Incorporation of Original
Indenture...................................7
SECTION 203. Executed in Counterparts.............................7
SECTION 204. Listing of Notes.....................................7
______________________-
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
THIS _______ SUPPLEMENTAL INDENTURE is made as of the ____ day
of __________, _____, by and between SAVANNAH ELECTRIC AND POWER COMPANY, a
Georgia corporation, 000 Xxx Xxxxxx, Xxxx, Xxxxxxxx, Xxxxxxx 00000 (the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation, 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a
Subordinated Note Indenture, dated as of ___________ 1, 19__ (the "Original
Indenture"), with The Bank of New York;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture and this ______ Supplemental Indenture, is
herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Junior
Subordinated Notes may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a
new series of Junior Subordinated Notes;
WHEREAS, additional Junior Subordinated Notes of other series
hereafter established, except as may be limited in the Original Indenture as at
the time supplemented and modified, may be issued from time to time pursuant to
the Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution
and delivery of this ______ Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Series __ Junior Subordinated Notes
SECTION 101. Establishment. There is hereby established a new series of
Junior Subordinated Notes to be issued under the Indenture, to be designated as
the Company's Series __ _____% Junior Subordinated Notes due _____________,
_____ (the "Series __ Notes").
There are to be authenticated and delivered $____________ principal
amount of Series __ Notes, and no further Series __ Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series __ Notes shall be issued in definitive fully
registered form.
The Series __ Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series __ Notes shall
initially be evidenced by one certificate issued to the Property Trustee of
Savannah Electric Capital Trust I.
The form of the Trustee's Certificate of Authentication for the Series
__ Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series __ Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 102. Definitions. The following defined terms used herein
shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Deferred Interest" means each installment of interest not paid during
any Extension Period, and interest thereon. Deferred installments of interest
shall bear interest at the rate of ______% per annum from the applicable
Interest Payment Date to the date of payment, compounded quarterly.
"Extension Period" means any period during which the Company has
elected to defer payments of interest, which deferral may be for a period of up
to twenty (20) consecutive quarters.
"Interest Payment Dates" means March 31, June 30, September 30, and
December 31 of each year.
"Investment Company Act Event" means that the Company shall have
received an Opinion of Counsel to the effect that, as a result of the occurrence
of a change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Securities Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended,
which change becomes effective on or after the Original Issue Date.
"Original Issue Date" means _____________, _____.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Securities Trust" means Savannah Electric Capital Trust I, a statutory
business trust formed by the Company under Delaware law to issue Trust
Securities, the proceeds of which will be used to purchase Series __ Notes.
"Special Event" means an Investment Company Act Event or Tax Event.
"Stated Maturity" means _________________, _______.
"Tax Event" means that the Company shall have received an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to, or
change in, an interpretation or application of such laws or regulations, there
is more than an insubstantial risk that (i) the Securities Trust would be
subject to United States federal income tax with respect to income accrued or
received on the Series __ Notes, (ii) interest payable on the Series __ Notes
would not be deductible by the Company for United States federal income tax
purposes, or (iii) the Securities Trust would be subject to more than a de
minimis amount of other taxes, duties or other governmental charges, which
change or amendment becomes effective on or after the Original Issue Date.
SECTION 103. Payment of Principal and Interest. Principal shall be paid
at the Stated Maturity (or upon earlier redemption). The unpaid principal amount
of the Series __ Notes shall bear interest at the rate of _____% per annum until
paid or duly provided for. Interest shall be paid quarterly in arrears on each
Interest Payment Date to the Person in whose name the Series __ Notes are
registered on the Regular Record Date for such Interest Payment Date, provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein will be paid to the Person to whom principal is payable.
So long as an Extension Period is not occurring, any such interest that is not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holders on such Regular Record Date and may either be paid to the Person or
Persons in whose name the Series __ Notes are registered at the close of
business on a Special Record Date for the payment of such defaulted interest to
be fixed by the Trustee ("Special Record Date"), notice whereof shall be given
to Holders of the Series __ Notes not less than ten (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, if any, on which
the Series __ Notes shall be listed, and upon such notice as may be required by
any such exchange, all as more fully provided in the Original Indenture.
Payments of interest on the Series __ Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series __ Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series __ Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day, 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.
Payment of the principal and interest (including Additional Interest,
if any) due at the Stated Maturity or earlier redemption of the Series __ Notes
shall be made upon surrender of the Series __ Notes at the Corporate Trust
Office of the Trustee, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. Payments of interest (including interest on any Interest Payment Date)
will be made, subject to such surrender where applicable, at the option of the
Company, (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer at
such place and to such account at a banking institution in the United States as
may be designated in writing to the Trustee at least sixteen (16) days prior to
the date for payment by the Person entitled thereto.
The Company shall pay, as additional interest on the Series __ Notes,
when due to the United States or any other taxing authority, the amounts set
forth in clause (i) of the definition of Additional Interest.
SECTION 104. Deferral of Interest Payments. The Company has the right
at any time and from time to time to extend the interest payment period of the
Series __ Notes for up to twenty (20) consecutive quarters (each, an "Extension
Period"), but not beyond the Stated Maturity. Notwithstanding the foregoing, the
Company has no right to extend its obligation to pay such amounts as are defined
in clause (i) of the definition of Additional Interest. Prior to the termination
of any such Extension Period, the Company may further extend the interest
payment period, provided that such Extension Period, together with all such
previous and further extensions of that Extension Period, shall not exceed
twenty (20) consecutive quarters. 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 select a new Extension Period,
subject to the above limitations and requirements.
Upon the termination of any Extension Period, which termination shall
be on an Interest Payment Date, the Company shall pay all Deferred Interest on
the next succeeding Interest Payment Date to the Person in whose name the Series
__ Notes are registered on the Regular Record Date for such Interest Payment
Date, provided that Deferred Interest payable at Stated Maturity or on any
Redemption Date will be paid to the Person to whom principal is payable.
The Company shall give the Holder or Holders of the Series __ Notes and
the Trustee notice, as provided in Sections 105 and 106, respectively, of the
Original Indenture, of its selection or extension of an Extension Period at
least one Business Day prior to the earlier of (i) the Regular Record Date
relating to the Interest Payment Date on which the Extension Period is to
commence or relating to the Interest Payment Date on which an Extension Period
that is being extended would otherwise terminate, or (ii) the date the Company
or Securities Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization of the record date or the date
such distributions are payable. The Company shall cause the Securities Trust to
give notice of the Company's selection of such Extension Period to Holders of
the Trust Securities. The month in which any notice is given pursuant to the
immediately preceding sentence of this Section shall constitute the first month
of the first quarter of the twenty (20) quarters, which comprise the Maximum
Extension Period.
At any time any of the foregoing notices are given to the Trustee, the
Company shall give to the Paying Agent for the Series __ Notes such information
as said Paying Agent shall reasonably require in order to fulfill its tax
reporting obligations with respect to such Series __ Notes.
SECTION 105. Denominations. The Series __ Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 106. Global Securities. If the Series __ Notes are distributed
to Holders of the Trust Securities of the Securities Trust in liquidation of
such Holders' interests therein, the Series __ Notes will be issued in the form
of one or more Global Securities registered in the name of the Depositary (which
shall be The Depository Trust Company) or its nominee. Except under the limited
circumstances described below, Series __ Notes represented by the Global
Security will not be exchangeable for, and will not otherwise be issuable as,
Series __ Notes in definitive form. The Global Securities described above may
not be transferred except by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series __ Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series __ Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iii) there shall have occurred an Event of Default with respect to the Series
__ Notes. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series __ Notes registered in such names as
the Depositary shall direct.
SECTION 107. Transfer. No service charge will be made for any transfer
or exchange of Series __ Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (a) to issue, transfer or exchange
any Series __ Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Series __ Notes to be called for redemption, and ending at the
close of business on the day of the mailing, or (b) to transfer or exchange any
Series __ Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series __ Note redeemed in part.
SECTION 108. Redemption. The Series __ Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, at any time or from time to time on or after ______________, _____, at
a Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including Additional Interest, if any, to the
Redemption Date; provided, however, that if a redemption in part shall result in
the delisting of the Preferred Securities issued by the Securities Trust, the
Company may only redeem the Series __ Notes in whole. In addition, upon the
occurrence of a Special Event at any time, the Company may, within ninety (90)
days following the occurrence thereof and subject to the terms and conditions of
the Indenture, elect to redeem the Series __ Notes, in whole, at a price equal
to 100% of the principal amount to be redeemed plus any accrued but unpaid
interest (including Additional Interest) to the Redemption Date.
In the event of redemption of the Series __ Notes in part only, a new
Series __ Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series __ Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series __ Notes shall, with
respect to the principal thereof, be divisible by $25.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this ______
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series __ Notes and of this ______ Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this _______ Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 203. Executed in Counterparts. This ______ Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
SECTION 204. Listing of Notes. If the Series __ Notes are to be issued
as a Global Security in connection with the distribution of the Series __ Notes
to the Holders of the Preferred Securities issued by the Securities Trust, the
Company will use its best efforts to list such Series __ Notes on the New York
Stock Exchange or any such other exchange on which such Preferred Securities are
then listed and traded.
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
ATTEST: SAVANNAH ELECTRIC AND POWER COMPANY
By: By:__________
Assistant Secretary Vice President
ATTEST: THE BANK OF NEW YORK
By: By:__________
EXHIBIT A
FORM OF SERIES __ NOTE
NO. 1 CUSIP NO. __________
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE
PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
SAVANNAH ELECTRIC AND POWER COMPANY
SERIES __ ______% JUNIOR SUBORDINATED NOTE
DUE _____________, _____
Principal Amount: $__________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: _____________, _____
Stated Maturity: _____________, _____
Interest Payment Dates: March 31, June 30, September 30 and December 31
Interest Rate: _____% per annum
Authorized Denomination: $25
Initial Redemption Date: _____________, _____
Savannah Electric and Power Company, a Georgia corporation (the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to _____________________________________, or registered assigns, the principal
sum of _________ DOLLARS ($__________) on the Stated Maturity shown above (or
upon earlier redemption), and to pay interest thereon from the Original Issue
Date shown above, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly in arrears on each
Interest Payment Date as specified above, commencing on the Interest Payment
Date next succeeding the Original Issue Date shown above and on the Stated
Maturity (or upon earlier redemption) at the rate per annum shown above until
the principal hereof is paid or made available for payment and on any overdue
principal and on any overdue installment of interest. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date (other
than an Interest Payment Date that is the Stated Maturity or on a Redemption
Date) will, as provided in such Indenture, be paid to the Person in whose name
this Note (the "Note") is registered at the close of business on the Regular
Record Date as specified above next preceding such Interest Payment Date,
provided that any interest payable at Stated Maturity or on any Redemption Date
will be paid to the Person to whom principal is payable. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note 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 Notes 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, if any, on which
the Notes of this series shall be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, 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 a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee or the principal corporate trust office of the Property Trustee of
the Securities Trust are closed for business.
The Company shall have the right at any time and from time to time
during the term of this Note to extend the interest payment period of such Note
for up to 20 consecutive quarters but not beyond the Stated Maturity of this
Note (each, an "Extension Period"), during which periods unpaid interest
(together with interest thereon) will compound quarterly at the Interest Rate
("Deferred Interest"). Upon the termination of each Extension Period, which
shall be an Interest Payment Date, the Company shall pay all Deferred Interest
on the next succeeding Interest Payment Date to the Person in whose name this
Note is registered at the close of business on the Regular Record Date for such
Interest Payment Date, provided that any Deferred Interest payable at Stated
Maturity or on any Redemption Date will be paid to the Person to whom principal
is payable. Prior to the termination of any such Extension Period, the Company
may extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions thereof shall not exceed
20 consecutive quarters. Upon the termination of any such Extension Period, and
the payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to the above
requirements. If the Company shall have given notice of its election to select
any Extension Period, the Company shall not, subject to certain exceptions
provided in the Indenture, (i) declare or pay any dividend or distribution on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock, or make any guarantee payments with respect to the
foregoing and (ii) make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees
other than its guarantee of the Preferred Securities issued by Savannah Electric
Capital Trust I) issued by the Company that rank pari passu with or junior to
this Note. The Company shall give the Holder of this Note and the Trustee notice
of its selection or extension of an Extension Period at least one Business Day
prior to the earlier of (i) the Regular Record Date relating to the Interest
Payment Date on which the Extension Period is to commence or relating to the
Interest Payment Date on which an Extension Period that is being extended would
otherwise terminate or (ii) the date the Company or Securities Trust is required
to give notice to the New York Stock Exchange or other applicable
self-regulatory organization of the record date or the date distributions are
payable.
The Company also shall be obligated to pay when due and without
extension all additional amounts as may be required so that the net amount
received and retained by the Holder of this Note (if the Holder is a Securities
Trust) after paying taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority will not be less than the amounts such Holder would
have received had no such taxes, duties, assessments, or other governmental
charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
__ Notes shall be made upon surrender of the Series __ Notes at the Corporate
Trust Office of the Trustee, 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. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least 16 days prior to the
date for payment by the Person entitled thereto.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture), and this Note
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Note, 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 action 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 Indebtedness, 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 NOTE 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 by manual signature, this Note 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 under its corporate seal.
Dated:
SAVANNAH ELECTRIC AND POWER COMPANY
By: ________ ___________
Attest:
{Seal of SAVANNAH ELECTRIC AND POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Authorized Officer
(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior Subordinated
Notes of the Company (the "Notes"), issued and issuable in one or more series
under a Subordinated Note Indenture, dated as of __________ 1, _____, as
supplemented (the "Indenture"), between the Company and The Bank of New York,
Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures incidental thereto reference
is hereby made for a statement of the respective rights, limitation of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Notes issued thereunder and of the terms upon which said Notes are, and are
to be, authenticated and delivered. This Note is one of the series designated on
the face hereof as Series __ _____% Junior Subordinated Notes due ____________,
_____ (the "Series __ Notes") in the aggregate principal amount of up to
$___________. Capitalized terms used herein for which no definition is provided
herein shall have the meanings set forth in the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after __________, _____
at the option of the Company, without premium or penalty, in whole or in part,
at a Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including any Additional Interest, if any, to the
Redemption Date. Upon the occurrence of a Special Event (as defined below) at
any time, the Company may, within 90 days following the occurrence thereof and
subject to the terms and conditions of the Indenture, redeem this Note without
premium or penalty, in whole, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. A Special Event may be a
Tax Event or an Investment Company Act Event. "Tax Event" means that the Company
shall have received an Opinion of Counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
of such laws or regulations, there is more than an insubstantial risk that (i)
the related Securities Trust would be subject to United States federal income
tax with respect to income accrued or received on the Series __ Notes, (ii)
interest payable on the Notes of this series would not be deductible by the
Company for United States federal income tax purposes, or (iii) the related
Securities Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges, which change or amendment becomes
effective on or after the Original Issue Date. "Investment Company Act Event"
means that the Company shall have received an Opinion of Counsel to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the related Securities Trust is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended, which change becomes effective on or
after the Original Issue Date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof. The Notes will not have a
sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes 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 Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes 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 Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note 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 Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor 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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes 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, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular without alteration or
enlargement, or any change whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Authorized Officer
