Exhibit 4.4
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DUKE CAPITAL CORPORATION
TO
THE CHASE MANHATTAN BANK
Trustee
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Supplemental Indenture
Dated as of ,
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$
Series % Junior Subordinated Notes
due ,
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TABLE OF CONTENTS/1/
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PAGE
ARTICLE 1 Series % Junior Subordinated Notes............... 1
SECTION 101. Establishment......................................... 1
SECTION 102. Definitions........................................... 2
SECTION 103. Payment of Principal and Interest..................... 4
SECTION 104. Deferral of Interest Payments......................... 5
SECTION 105. Denominations......................................... 6
SECTION 106. Global Securities..................................... 6
SECTION 107. Redemption............................................ 7
SECTION 108. Additional Interest................................... 7
SECTION 109. Limitations on Dividend and Certain Other Payments.... 8
SECTION 110. Covenants Regarding Securities Trust.................. 9
SECTION 111. No Fiduciary Duty of Trustee to Holders of Trust
Securities............................................ 9
SECTION 112. Listing of Series Notes............................. 9
SECTION 113. Covenant Defeasance................................... 9
SECTION 114. Set-Off............................................... 9
SECTION 115. Subordination......................................... 9
SECTION 116. Paying Agent.......................................... 10
ARTICLE 2 Miscellaneous Provisions.............................. 10
SECTION 201. Recitals by Corporation............................... 10
SECTION 202. Ratification and Incorporation of Original Indenture.. 10
SECTION 203. Executed in Counterparts.............................. 10
SECTION 204. Assignment............................................ 10
SECTION 205. Enforcement by Holders of Preferred Securities of
Right of Holders to Receive Principal and Interest.... 10
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/1/ This Table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms and
provisions.
i
THIS SUPPLEMENTAL INDENTURE is made as of the day of ,
, by and between DUKE CAPITAL CORPORATION, a Delaware corporation,
having its principal office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (the "Corporation"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation has heretofore entered into a Subordinated
Indenture, dated as of April 1, 1998 (the "Original Indenture") with The
Chase Manhattan Bank, as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as may be amended and supplemented to the date
hereof, including by this Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Indenture and the terms of
such series may be described by a supplemental indenture executed by the
Corporation and the Trustee;
WHEREAS, the Corporation proposes to create under the Indenture a series of
Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the 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 Corporation 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
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Securities to be issued under the Indenture, to be designated as the
Corporation'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 304, 305, 306, 906 or 1106 of the
Original Indenture. The Series Notes shall be issued in definitive fully
registered form without coupons.
The Series Notes shall be in substantially the form set out in Exhibit
hereto. The entire principal amount of the Series Notes shall initially be
evidenced by one certificate issued to the Property Trustee of Duke Capital
Financing Trust [ ].
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,
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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.
"Additional Interest" means (i) such additional amounts as may be required
so that the net amounts received and retained by the Holder (if the Holder is
the 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 the
Holder would have received had not such taxes, duties, assessments, or other
governmental charges been imposed; and (ii) such interest as shall accrue on
interest due and not paid on an Interest Payment Date, accruing at the rate of
% per annum from the applicable Interest Payment Date to the date of payment,
compounded quarterly, on each Interest Payment Date, to the extent permitted by
applicable law.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a
day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the principal corporate trust office of the Property Trustee is closed
for business.
"Deferred Interest" means such installments of interest as are not paid
during any Extension Period, plus Additional Interest (as defined in clause (ii)
of the definition thereof) thereon.
"Extension Period" means any period during which the Corporation has
elected to defer payments of interest, which deferral may be for a period of up
to twenty (20) consecutive quarters.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Corporation and The Chase Manhattan Bank, as guarantee trustee, for the benefit
of the holders of the Preferred Securities, as such Agreement may be amended
from time to time.
"Interest Payment Dates" means March 31, June 30, September 30 and December
31 of each year.
"Investment Company Act Event" means that the Administrative Trustees (as
defined in the Trust Agreement) and the Corporation shall have received an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written
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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 .
"Outstanding", when used with respect to the Series Notes, means, as of
the date of determination, all Series Notes, theretofore authenticated and
delivered under the Indenture, except:
(i) Series Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Series Notes for whose payment or redemption the necessary
amount of money or money's worth has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Corporation) in trust or set aside and segregated in trust by
the Corporation (if the Corporation shall act as its own Paying
Agent) for the Holders of such Series Notes; provided that if
such Series Notes are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Series Notes as to which Defeasance has been effected
pursuant to Section 1302 of the Original Indenture; and
(iv) Series Notes that have been paid or in exchange for or in
lieu of which other Series Notes have been authenticated and
delivered pursuant to the Indenture, other than any such Series
Notes in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Series Notes
are held by a bona fide purchaser in whose hands such Series
Notes are valid obligations of the Corporation;
provided, however, that in determining, during any period in which any Series
Notes are owned by any Person other than the Corporation or any Affiliate
thereof, whether the Holders of the requisite principal amount of Outstanding
Series Notes have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date,
Series Notes owned, whether of record or beneficially, by the Corporation or
any Affiliate thereof (with the exception of the Securities Trust) shall be
disregarded and deemed not to be Outstanding. In determining whether the
Trustee shall be protected in relying upon such request, demand, authorization,
direction, notice, consent, waiver or other action, only Series Notes that the
Trustee knows to be so owned by the Corporation or an Affiliate of the
Corporation (with the exception of the Securities Trust) in the above
circumstances shall be so disregarded. Series Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Series Notes and that the pledgee is not the Corporation or any Affiliate
of the Corporation.
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"Preferred Securities" means the % Trust Preferred Securities issued
by the Securities Trust.
"Property Trustee", when used with respect to the Series Notes,
means the Person designated as such in the Trust Agreement.
"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 Duke Capital Financing Trust [ ], a statutory
business trust formed by the Corporation under Delaware law to issue the Trust
Securities, the proceeds of which will be used to purchase Series Notes, or a
successor thereof.
"Special Event" means an Investment Company Act Event or Tax Event.
"Stated Maturity" means , .
"Tax Event" means that the Administrative Trustees and the Corporation
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 Corporation 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.
"Trust Agreement" means the Amended and Restated Trust Agreement that
governs the affairs of the Securities Trust.
"Trust Securities" means the securities issued by the Securities Trust
evidencing the entire beneficial interest therein.
SECTION 103. Payment of Principal and Interest. The unpaid principal
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amount of the Series Notes shall bear interest at the rate of % per annum
until paid or duly provided for, such interest to accrue from ,
or from the most recent Interest Payment Date to which interest has been
paid or duly provided for. Interest shall be paid 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
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manner not inconsistent with the requirements of any securities exchange, if
any, on which the Series Notes may 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 payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or payment in respect of any such
delay), 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) on the Series Notes shall be made at the office of the Paying Agent 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, with any such payment
that is due at the Stated Maturity or at earlier redemption of any Series
Notes being made upon surrender of such Series Notes to the Paying Agent.
Payments of interest (including interest on any Interest Payment Date) will be
made, subject to such surrender where applicable, at the option of the
Corporation, (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 Corporation 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 Corporation has the
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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"), during which Extension Period the Corporation shall have
the right to make partial payments of interest on any Interest Payment Date;
provided, however, that no such Extension Period may extend beyond the Stated
Maturity. Notwithstanding the foregoing, the Corporation 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 Corporation 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 Corporation 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 Corporation shall pay all Deferred Interest
on the next succeeding Interest Payment Date to the Person or Persons 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 or Persons to whom
principal is payable.
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The Corporation 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
Corporation or the 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 Corporation shall cause the
Securities Trust to give notice of the Corporation'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) consecutive
quarters which comprise the maximum Extension Period.
At any time any of the foregoing notices are given to the Trustee, the
Corporation 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
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denominations of $ or any integral multiple thereof.
SECTION 106. Global Securities. If the Series Notes are
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distributed to holders of the Trust Securities 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 such Global Security or Global
Securities 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 or except as described below. 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 Corporation that it is unwilling or unable to continue
as a Depositary for such Global Security and no successor Depositary shall have
been appointed by the Corporation within 90 days of receipt by the Corporation
of such notification, or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act 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 by the Corporation within 90 days after it
becomes aware of such cessation, or (ii) the Corporation in its sole discretion
determines that such Global Security shall be so exchangeable. 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.
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SECTION 107. Redemption. The Series Notes shall be subject to
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redemption at the option of the Corporation, 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 any Additional Interest)
to the Redemption Date; provided, however, that, if a redemption in part shall
result in the delisting of the Preferred Securities, the Corporation may redeem
the Series Notes only in whole. In addition, upon the occurrence of a Special
Event, the Corporation may, within ninety (90) days following the occurrence
thereof and subject to the terms and conditions of the Indenture, 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, if
any) 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 shall be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series Notes shall not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture. Notwithstanding the foregoing, no notice of redemption that
is given pursuant to such Section with respect to any Series Notes shall,
while any Preferred Securities are outstanding, contain a condition that
provides that redemption of the Series Notes, or the part thereof, specified
therein, shall be conditional upon receipt by the Trustee or the Paying Agent
for such Series Notes, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and any interest on such Series
Notes. Any notice provided to the Trustee under Section 1102 of the Original
Indenture shall also be provided by the Corporation to the Property Trustee;
provided that the Corporation shall provide notice pursuant to such Section 1102
on a date less than 45 days prior to the Redemption Date only if such shorter
notice is satisfactory to both the Trustee and the Property Trustee.
Any redemption of less than all of the Series Notes shall, with
respect to the principal thereof, be divisible by $ .
SECTION 108. Additional Interest. Whenever there is mentioned in
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the Indenture, in any context, the payment of the principal of, or any premium
or interest on, or in respect of, Securities of any series, such mention shall,
with respect to the Series Notes, be deemed to include mention of the payment
of Additional Interest provided for by the terms of the Series Notes to the
extent that, in such context, Additional Interest is, were or would be payable
in respect thereof pursuant to such terms, and express mention of the payment of
Additional Interest in any provisions of this Supplemental Indenture shall
not be construed as excluding Additional Interest in those provisions of the
Original Indenture or this Supplemental Indenture in which such express
mention is not made.
If, subsequent to the date that a satisfaction and discharge or
Defeasance is effected pursuant to Section 401 or 1302, respectively, of the
Original Indenture, Additional Interest (for purposes of this paragraph, as
defined in clause (i) of the definition thereof) (in excess of that established
as of the date that such discharge or Defeasance is effected) becomes payable in
respect of the Series Notes so discharged or defeased, the Corporation shall
irrevocably deposit or cause to be irrevocably deposited in accordance with the
provisions of Section 401 or 1304 of the Original Indenture, as the case may be,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Interest
7
becomes due, such additional moneys or Government Obligations as are necessary
to satisfy the provisions of Section 401 or 1304 of the Original Indenture, as
the case may be, as if a discharge or Defeasance were being effected as of the
date of such subsequent deposit.
Except as otherwise provided in or pursuant to the Indenture, at least
10 days prior to the first Interest Payment Date upon which Additional Interest
(for purposes of this paragraph, as defined in clause (i) of the definition
thereof) shall be payable, and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the information set forth in the Officers' Certificate hereinafter mentioned,
the Corporation shall furnish the Trustee and any Paying Agent, if other than
the Trustee or the Corporation, with an Officers' Certificate stating the amount
of the Additional Interest payable per minimum authorized denomination of the
Series Notes.
SECTION 109. Limitations on Dividend and Certain Other Payments. The
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Corporation covenants, for the benefit of the Holders of the Series Notes,
that, subject to the next succeeding sentence, (a) the Corporation shall not
declare or pay any dividend on, or make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock, and (b) the Corporation shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees other than the Guarantee) issued by the
Corporation which rank pari passu with or junior to the Series Notes (i) if at
such time the Corporation shall have given notice of its election to extend an
interest payment period for the Series Notes and such extension shall be
continuing or (ii) if at such time an Event of Default with respect to the
Series Notes shall have occurred and be continuing. The preceding sentence,
however, shall not restrict (A) any of the actions described in the preceding
sentence resulting from any reclassification of the Corporation's capital stock
or the exchange or conversion of one class or series of the Corporation's
capital stock for another class or series of the Corporation's capital stock or
(B) dividends or distributions in capital stock of the Corporation.
8
SECTION 110. Covenants Regarding Securities Trust. For so long as
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the Trust Securities remain outstanding, the Corporation covenants (i) directly
or indirectly to maintain 100% ownership of the Common Securities (as defined in
the Trust Agreement) of the Securities Trust; provided, however, that any
permitted successor of the Corporation under the Indenture may succeed to the
Corporation's ownership of such Common Securities, and (ii) to use its
reasonable efforts to cause the Securities Trust (a) to remain a statutory
business trust, except in connection with the distribution of Series Notes to
the holders of Trust Securities in liquidation of the Securities Trust, the
redemption of all of the Trust Securities, or certain mergers, consolidations or
amalgamations, each as permitted under the Trust Agreement, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes. The Corporation shall deliver to the Trustee, no later than the
Business Day on which the event occurs, written notice of the liquidation,
dissolution or winding-up of the Securities Trust if such liquidation,
dissolution or winding-up would occur earlier than the Stated Maturity of the
Series Notes owned by such Securities Trust.
SECTION 111. No Fiduciary Duty of Trustee to Holders of Trust
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Securities. The Trustee shall not be deemed to owe any fiduciary duty to the
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holders of Trust Securities and shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of a Trust
Security to establish that such Person is such a holder.
SECTION 112. Listing of Series Notes. If the Series Notes are
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to be issued as a Global Security in connection with the distribution of the
Series Notes to the holders of the Preferred Securities, the Corporation shall
use its best efforts to list such Series Notes on the New York Stock Exchange
or any other exchange on which such Preferred Securities are then listed. The
Corporation shall notify the Trustee if and when the Series Notes become
admitted to trading on the New York Stock Exchange or any other national
securities exchange.
SECTION 113. Covenant Defeasance. Section 1303 of the Original
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Indenture shall not apply to any of the Series Notes.
SECTION 114. Set-Off. Notwithstanding anything to the contrary in
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the Indenture or in any Series Note, prior to the dissolution of the
Securities Trust, the Corporation shall have the right to set-off and apply
against any payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or interest (including any Additional Interest)
on the Series Notes with and to the extent the Corporation has theretofore made,
or is concurrently on the date of such payment making, a payment with respect to
the Preferred Securities under the Guarantee. Contemporaneously with, or as
promptly as practicable after, any such payment under the Guarantee, the
Corporation shall deliver to the Trustee an Officers' Certificate (upon which
the Trustee shall be entitled to rely conclusively without any requirement to
investigate the facts contained therein) to the effect that such payment has
been made and that, as a result of such payment, the corresponding payment under
the Series Notes has been set-off in accordance with this Section 114.
SECTION 115. Subordination. The indebtedness evidenced by the
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Series Notes shall be, to the extent and in the manner set forth in the
Original Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness (as defined in the Original
Indenture) with respect to the Series Notes, and the Series Notes shall rank
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pari passu in right of payment with each other series of Securities issued under
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the Indenture, with the exception of any series of Securities which by its terms
provides otherwise.
SECTION 116. Paying Agent. The Trustee shall initially serve as
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Paying Agent with respect to the Series Notes, with the Place of Payment
initially being the Corporate Trust Office of the Trustee.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 201. Recitals by Corporation. The recitals in this
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Supplemental Indenture are made by the Corporation 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 the 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.
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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
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Indenture may be 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. Assignment. The Corporation shall have the right at
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all times to assign any of its rights or obligations under this Indenture with
respect to the Series Notes to a direct or indirect wholly-owned subsidiary of
the Corporation; provided that, in the event of any such assignment, the
Corporation shall remain primarily liable for the performance of all such
obligations. The Indenture may also be assigned by the Corporation in
connection with a transaction described in Article Eight of the Original
Indenture.
SECTION 205. Enforcement by Holders of Preferred Securities of Right
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of Holders to Receive Principal and Interest. So long as the Series Notes are
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held by the Property Trustee on behalf of the Securities Trust, a registered
holder of Preferred Securities may institute a legal proceeding directly against
the Corporation, without first instituting a legal proceeding directly against
or requesting or directing that action be taken by the Property Trustee or any
other Person, for enforcement of payment to such registered holder of principal
of or interest on Series Notes having a principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities of such
registered holder on or after the due dates therefor specified or provided for
in the Series Notes. This Section 205 and Section 109 of this
Supplemental Indenture are for the benefit of the registered holders of
Preferred Securities and, prior to the dissolution of the Securities Trust, may
be enforced by such holders. A holder of a Preferred Security shall not have the
right, as such holder, to enforce any other provision of the Indenture.
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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.
DUKE CAPITAL CORPORATION
By:
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Attest:
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THE CHASE MANHATTAN BANK,
as Trustee
By:
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Attest:
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EXHIBIT A
FORM OF
SERIES % JUNIOR SUBORDINATED NOTE
DUE ,
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.
DUKE CAPITAL CORPORATION
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:
Interest Rate: % per annum
Authorized Denomination: $ or any integral multiples thereof
Initial Redemption Date: ,
Duke Capital Corporation, a Delaware corporation (the "Corporation",
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, 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 (the "Interest Rate") 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 a Redemption
Date) will, as provided in such Indenture, be paid to the Person in whose name
this Series % Junior Subordinated Note
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(this "Security") 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 Security 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, if any, on which the Securities of
this series shall be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in said Indenture.
Payments of interest on this Security will include interest accrued to
but excluding the respective Interest Payment Dates. Interest payments for this
Security 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
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay), 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. "Business
Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which
banks in New York, New York are authorized or obligated by law or executive
order to remain closed or (iii) a day on which the Corporate Trust Office or the
principal corporate trust office of the Property Trustee is closed for business.
The Corporation shall have the right at any time and from time to time
during the term of this Security to extend the interest payment period of such
Security for up to 20 consecutive quarters (each, an "Extension Period"), but
not beyond the Stated Maturity of this Security, during which Extension Periods
interest shall accrue on unpaid installments of interest at the Interest Rate,
compounded quarterly, to the date of payment to the extent permitted by
applicable law (such unpaid interest plus such interest thereon being called
"Deferred Interest"); provided, however, that the Corporation shall have the
right to make partial payments of interest on any Interest Payment Date during
any Extension Period. Upon the termination of each Extension Period, which shall
be an Interest Payment Date, the Corporation shall pay all Deferred Interest on
the next succeeding Interest Payment Date to the Person in whose name this
Security 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
Corporation may further extend the interest payment period; provided that such
Extension Period together with all such previous and further extensions thereof
shall not exceed twenty (20) consecutive quarters. Upon the termination of any
such Extension Period, and the payment of all accrued and unpaid interest
(including any Additional Interest) then due, the Corporation may select a new
Extension Period, subject to the above requirements. The Corporation shall not
(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, 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 the
Guarantee) issued by the Corporation that rank pari passu with or junior to this
Security if the Corporation shall have given notice of its election to extend an
interest payment period for this Security and such extension shall be continuing
or if at such time an Event of Default with respect to the series of which this
Security is a part shall have occurred and be
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continuing. The preceding sentence, however, shall not restrict (A) any of the
actions described in the preceding sentence resulting from any reclassification
of the Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock or (B) dividends or distributions in capital stock
of the Corporation. The Corporation shall give the Holder of this Security 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 Corporation or the
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 Corporation 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 Security (if the Holder is the
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 this
Security shall be made upon surrender of this Security, 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
Corporation, (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.
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The indebtedness evidenced by this Security is, to the extent and in
the manner set forth in the Indenture, subordinate in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture),
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 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 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 by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated:
DUKE CAPITAL CORPORATION
By:
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Attest:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------------
Authorized Officer
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(Reverse Side of Security)
This Security is one of a duly authorized issue of Securities of the
Corporation (the "Securities"), issued and issuable in one or more series under
a Subordinated Indenture, dated as of April 1, 1998, as supplemented (the
"Indenture"), between the Corporation and The Chase Manhattan Bank, as Trustee
(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, limitation of rights, duties and
immunities thereunder of the Corporation, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security 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 Corporation shall have the right, subject to the terms and
conditions of the Indenture, to redeem this Security at any time on or after
, at the option of the Corporation, 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) to the Redemption Date. Upon the occurrence of a Special Event
(as defined below), the Corporation may, within 90 days following the occurrence
thereof and subject to the terms and conditions of the Indenture, redeem this
Security 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) to the Redemption Date. A Special Event may be a Tax
Event or an Investment Company Act Event. "Tax Event" means that the
Administrative Trustees and the Corporation 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 Corporation 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.
"Investment Company Act Event" means that the Administrative Trustees and the
Corporation shall have received an Opinion of Counsel experienced in such
matters 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.
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 surrender hereof. The
Securities of this series will not have a sinking fund.
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If an Event of Default with respect to the 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, 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
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series with
respect to which a default under the Indenture shall have occurred and be
continuing (voting as one class), on behalf of the Holders of the Securities of
all such series, to waive, with certain exceptions, such default under the
Indenture and its consequences. The Indenture also permits the Holders of not
less than a majority 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 Corporation with certain provisions of the Indenture
affecting such series. 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 hereof or 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 Corporation,
which is absolute and unconditional, to pay the principal of 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 Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Security Registrar and 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 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 Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any
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suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest hereon on or after the respective
due dates expressed herein.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Securities of this series upon compliance with
certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the Corporation 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 Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Corporation.
This Security shall be governed by, and construed in accordance with,
the internal laws of the State of New York.
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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 common UNIF GIFT MIN ACT - ______________
(Cust)
TEN ENT - as tenants by the entireties Custodian ______________
(Minor)
JT TEN - as joint tenants with rights under Uniform Gifts
of survivorship and not as to Minors Act ______________
tenants in common (State)
Additional abbreviations may also be used though not on the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s)
unto ---------------- (please insert Social Security or other identifying number
of assignee).
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
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the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
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agent to transfer said Security on the books of the Corporation, with full power
of substitution in the premises.
Dated:
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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.
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EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
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Authorized Officer
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